Kettle and Baker
[2010] FamCA 1016
•2 November 2010
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER | [2010] FamCA 1016 |
| FAMILY LAW – PROCEDURE – Inspection of subpoena – application for McKenzie Friend FAMILY LAW – COURTS AND JUDGES – application to disqualify judge |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Batey-Elton & EltonNo. 2 (2008) FamCAFC 202 Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Kettle |
| RESPONDENT: | Ms Baker |
| INDEPENDENT CHILDREN’S LAWYER: | Ms K. Berck |
| FILE NUMBER: | BRC | 6532 | of | 2009 |
| DATE DELIVERED: | 2 November 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 2 November 2010 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Ellis of Burchill & Horsey Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Berck of Berck & Associates |
Orders
IT IS ORDERED THAT
Mr B is permitted to act today as a silent McKenzie Friend for the father.
The oral application by the father that Justice Murphy be disqualified from hearing this matter is dismissed.
The oral application by the father that Mr B, or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, assist him with inspecting subpoena documents, or acting as his agent to do so, is dismissed.
The Application in a Case filed on 20 August 2010 in respect of Mr B acting as an advocate for the father is dismissed.
AND IT IS NOTED THAT such application is dismissed in respect of any procedural hearings as part of the court’s case management system, but does not preclude any application being made as to whether Mr B be permitted to act as an advocate for the father in any interim or final hearing for parenting orders, with any such application to be heard by the judge sitting at any such hearing.
IT IS FURTHER ORDERED THAT
The Father file and serve, by 4.00pm on 26 November 2010, an Application in a Case supported by such affidavit material as he might consider appropriate, setting out the order that he seeks in respect of the proposed direction sought by the Independent Children’s Lawyer that the Family Consultant Ms S prepare a full family report after viewing the subpoenaed materials and further interviewing the parties, the child and any other significant person.
The hearing of the Application in a Case referred to in the previous paragraph of these Orders, be listed for hearing in the Magellan Directions List at 11.00am on 8 December 2010 in the Brisbane Registry of the Family Court of Australia.
All outstanding applications are adjourned for directions to progress the matter to final hearing, to the Magellan Directions List at 11.00am on 8 December 2010.
IT IS DIRECTED THAT
A copy of the s 69ZW Report by the Department of Communities (Child Safety Services) be provided to the solicitor for the mother and to the father.
Subject to the Independent Children’s Lawyer identifying any documents which include objection to inspection, the Independent Children’s Lawyer alone is granted leave to copy, and the solicitors for the mother, and the father are granted leave to inspect, the documents produced pursuant to subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.
Leave is granted to the Independent Children’s Lawyer and the parties (or any properly qualified person admitted to practice as a legal practitioner in Queensland acting on their behalf), to inspect the court files BRF2360/2002 and/or BRC6532/2009.
The Independent Children’s Lawyer is granted leave to issue subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.
IT IS NOTED that publication of this judgment under the pseudonym Kettle & Baker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 6532 of 2009
| MR KETTLE |
Applicant
and
| MS BAKER |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This matter appears as one of seven matters listed before me in this court’s specific case management list known widely as the Magellan Directions List. The father represents himself and applies for an order that I should recuse myself on the basis of either real or apprehended bias.
It is not made clear by the father whether he asserts that I am actually biased or that there is a reasonable apprehension of bias (as the authorities make clear should be distinguished).
This matter has a very long history in this court, and also has a history in the Federal Magistrates Court.
Bias – Directions Hearing
The expressed grounds upon which the father says that I should recuse myself are, firstly, that I referred to Mr B, who is the subject of a separate application by the father filed on 20 August 2010 that he have leave of the court to act as advocate for the father, as “that lunatic.”
I asked the father to specify the occasion upon which that was said. He said he didn’t know. I asked the father to specify what evidence he had before me that deposed to that assertion; there is none. The father alleges that there are “people” who are alleged by the father to have heard the statement. They are unspecified by him.
The second basis upon which thef ather says that I should disqualify myself is that I was “disqualified in the matter of Batey-Elton.” I asked the father to specify the basis upon which that assertion is made; he did not specify any such basis. I asked the father to specify the judge who disqualified me in that case (I was not the judge who heard the matter) and the occasion; he was unable to give me that information.
I asked the father to tell me whether he had provided notice to either the mother’s legal practitioners or the Independent Children’s Lawyer of this application. He indicated that he had not given them any prior notice before making the oral application before me today. No application has been filed in respect of the application made orally by the father today, nor has the father filed any affidavit material (either by himself or any other person) in support of the application.
When pressed, the fourth matter that the father relies upon to suggest I should recuse myself is that I was a member of the Full Court that made orders in his appeal which (in part) dismissed the appeal against parenting orders, but ordered the remission of a child support matter to a judge of this court.
The father, in what I respectfully regard as a very confused submission, suggests that the matter was listed before me on remission from the Full Court, and I thereafter transferred the child support matter to the Federal Magistrates Court.
I gather that the gravamen of the complaint said to found the allegation of bias in that specific respect is that the Full Court’s order suggested that it should be a judge of this court who dealt with the child support application, (as distinct, I assume, from what occurred, namely that when remitted to a judge of this court, that judge exercised the discretion given to a judge of this court by the Act to transfer a matter wholly relating to child support to the Federal Magistrates Court.
It will be plain enough, I think, from the outline of the matters just referred to that the only possible basis upon which the father could sensibly found an application that I should recuse myself is that I referred to Mr B, who is the subject of the prospective application to which I have referred, as “that lunatic.”
I must say I have no independent recollection of having said that, and I reiterate that there is no evidence whatsoever before me to suggest that that statement was made or when, where and in what circumstances it was made.
However, in an application that a judge should recuse himself either on the basis of actual bias or reasonable apprehension of bias, it seems to me that, if justice is to be seen to be done, I should assume for the purposes of this application that the assertion is correct and I did, in fact, make that comment with respect to Mr B.
The issue, then, becomes whether I should disqualify myself in respect of the proceedings before me today.
These proceedings relate, first, to directions that should be made in this specific case management list.
I emphasise that the only orders sought in the Magellan directions list this morning are sought by the Independent Children’s Lawyer and are agreed to by the mother. They involve the preparation of a family report by a named family report writer, the issue of subpoenae and the inspection of documents, and the adjournment of the matter to the Magellan registrar for the making of trial directions so as to have the parenting issue now live in this court proceed to a final hearing.
For reasons I will shortly outline, I can’t see that the interests of justice require, or would suggest, (taking the father’s case at its absolute highest) that I should recuse myself in respect of the hearing of an application for what are essentially procedural directions. I refuse the application to recuse myself in respect of those matters.
I take it from the father, although not articulated by him in this respect, that the application also extends to an application for me to recuse myself in respect of his Application in a Case that Mr B be given leave to act as advocate for the father in these proceedings. The application to recuse myself in respect of that separate application will be dealt with in a moment.
That application is supported by an affidavit, or what purports to be an affidavit, filed 20 August 2010 by the father. In fact, the “affidavit” merely annexes what is effectively an outline of argument in respect of the application. That outline refers to a number of authorities with respect to the application before the court. It also refers to journal articles, for example written by a judge of the Federal Court of Australia in respect of self-represented litigants and the like.
First, should I recuse myself in respect of the application?
It seems to me that the case for the father, taken at its highest, provides a foundation for the consideration of such an application; however, an application of that type cannot be divorced, as it seems to me, from the nature of the application to be heard and determined by a judge to which the application relates.
In that respect, particular regard, must in my view, be given to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. That decision makes it abundantly clear that, in many cases, courts, (including this court which is a busy court, handling very large lists) should pay significant regard to the case management necessities involved, including in managing lists of that type.
The Application in a Case is, as it seems to me, an application that relates, in terms, for me to recuse myself in respect of what are plainly interlocutory proceedings. There is no requirement for me, as would a trial judge, to decide “credit issues” as between the parties. In all likelihood I will not be the trial judge dealing with those issues.
My role for the moment, (and, indeed, the role of the Magellan Registrar who exercises power delegated to her by the judges of this court pursuant to statute) is to manage this case, and all other cases awaiting trial in this list, for hearing.
The application to recuse myself in respect of this application relates only to the further management of the action within a specific list, so as to facilitate the matter proceeding to trial.
Accordingly, it seems to me that, having regard to all of the authorities which bind me, my role in respect of this application, limited in the way I have just described, is not such that I ought to recuse myself in respect of the application in a case filed by the father.
RECORDED : NOT TRANSCRIBED
Oral Application re Inspection of documents and Advocacy by Mr B
I have earlier given ex tempore reasons in respect of an oral application made by the father that I should recuse myself for the purposes of these interlocutory proceedings. I incorporate those earlier reasons into the reasons I am about to deliver which pertain to an application in a case filed by the father on 20 August 2010, supported by an affidavit filed the same date.
Some of the matters to which I have already made reference will be relevant to this application as well. The determination of an issue as to whether a self-represented party should be assisted in any way, whether by a “McKenzie friend”, as that expression is understood in the authorities, or by permitting a person who is not a legal practitioner to be an advocate on their behalf, is, it seems to me, directly related to the nature of the proceedings to which the application relates.
I should firstly say that it seems to me entirely open, for example, for the father to later make an application that a person, whether Mr B or otherwise, ought be permitted to act as his advocate during the hearing of, for example, an interim parenting application or, for example, at the final trial of the parenting issues live between the parties.
The application is made in these terms: “Mr [B] has leave of the court to act as an advocate for the father in these proceedings.”
Whilst the application might be seen to relate to proceedings for parenting orders generally, the application, is in my view, more properly confined to that stage of the proceedings that are currently before the court.
I reiterate that, at the moment, the matter is in the court’s Magellan list, which list is a case management tool employed by the court in respect of matters where allegations of sexual abuse or serious physical abuse or neglect are made. The Magellan list is a case management exercise that seeks to give certain priorities to cases of that type.
There is, during the course of these proceedings, no substantial parenting orders made. In the event that interim parenting orders are sought they would, in the usual course, be heard (at the moment) by the Principal Registrar or by me, but only in circumstances where an Application in a Case was properly filed and supported in accordance with the Rules, and where a hearing of that interim parenting issue was plainly flagged as needed.
No such interim application is before the court at the present time. There is an application for final relief before the court at the present time, which is being case managed to a final hearing on the assumption that a final hearing will be necessary in order to determine it.
It is in that context that the father makes an application that Mr B act as his advocate.
I sought from the father, during the course of argument that ensued in respect of directions sought by the Independent Children’s Lawyer, his attitude to those directions.
The father objects to Ms S preparing a report, and I propose to deal with that specific issue in a moment, having first determined whether Mr B should act as an advocate on behalf of the father.
The father indicated that he agreed with orders 2, 3 and 4 proposed by the Independent Children’s Lawyer, subject to paragraph 2 being altered so that it provides that each of the parties, or their legal practitioners as the case may be, have leave to inspect and copy documents produced pursuant to subpoenaing as referred to in that paragraph.
The father indicated that he had no difficulty to paragraphs 3 and 4 of the orders sought by the Independent Children’s Lawyer.
There could be no reasonable suggestion other than that the father was perfectly capable of dealing with each and all of those matters on his own behalf.
The father also indicated that he sought to make an oral application for Mr B to inspect documents with him. I made it plain to the father that my preliminary view (in the sense of it being subject to persuasion by cogent argument), was that I would not permit Mr B as the father’s agent - or indeed any other agent who was not a legal practitioner - to inspect documents on the father’s behalf.
I made clear my reasons for that, which are grounded in the implied undertakings which solemnly bind any legal practitioner, properly so called, in their inspection of documents, including, very importantly, an implied undertaking to not disseminate any such information as might be contained in those documents, save for the purposes of providing proper legal advice and seeking instruction.
I am, and would be, extremely reluctant to allow any non-practitioner to engage in the process of inspecting subpoenaed material, and all the more so where subpoenaed material in this case is likely, as each of Ms Ellis and Ms Berck submit on behalf of the mother and Independent Children’s Lawyer respectively, to contain “sensitive information” relating to a 10 year old boy, and where allegations of sexual abuse lie at the centre of the allegations made in these proceedings.
The father did not advance any argument, let alone any cogent argument, to suggest that a non-practitioner, and Mr B in particular, should be permitted to act as his agent in that respect.
The argument that the father did advance was that he and Mr B should together be permitted to inspect those documents. Neither Ms Ellis nor Ms Berck objected to Mr B making that application orally without any prior notice to them.
The argument advanced by the father in favour of the order that he seeks is that the documents are likely to contain information which is expressed in a way that he would find it difficult to understand.
I asked the father on a number of occasions to tell me whether he asserted that he suffered from any particular learning difficulty, any difficulties with English, or any other specific difficulties in comprehension, such as would prevent him from being able to engage in that process.
The father indicated that he suffered from no such difficulties, but indicated that his belief was that the documents contained information that is expressed in such a way such that he would need assistance during the process of inspection.
McHugh J famously said in Gallo v Dawson that representing oneself in legal proceedings may be a disadvantage, but did not provide to a self-represented person some particular advantage in the conduct of proceedings.
It needs to be said categorically that the law relating to the court’s obligation to self-represented parties is to ensure that the interests of justice are met by there being, to the extent that it can reasonably be done, a level playing field with respect to the conduct of the proceedings. The law does not provide to a self-represented person an advantage over parties who are represented.
Furthermore, the nature of the difficulty that the father says he would experience remains a little unclear - at least to me. The application suggests that the father is asserting that he requires some form of legal expertise to assist him in the inspection process.
He says, aided by a note prepared for him and handed to him by Mr B, that he requires assistance in the preparation for the hearing of the matter, and he would be disadvantaged in his preparation of the hearing of the matter if somebody (specifically Mr B), was not present during the conduct of the inspection.
It seems to me that, having inspected the documents, a person might be in the position of needing to receive, or perceiving that they need to receive, advice in respect of the material contained in the documents.
It seems to me that it is by no means fanciful that a person would seek to obtain advice including legal advice, from a properly qualified legal practitioner should they so choose, in respect of material contained within documents that might be perceived to be central to a determination of the ultimate parenting issues.
I accept the submission by the father that he might need such assistance in the preparation of either any interim application or the final trial of the matter, having had the opportunity to inspect the documents. It does not, however, seem to me to follow that, because such assistance might be needed subsequent to the inspection process in respect of a prospective application to the court or prospective trial, he would need assistance in the process of inspection itself.
That is all the more so in circumstances where he makes it plain to the court that he suffers from no disability such that he would be in any worse position than any other self-represented litigant seeking to inspect documents of the type under consideration.
I should say for the sake of completeness that Ms Berck, the Independent Children’s Lawyer, opposes the application by the father that he be accompanied by Mr B or any other non‑legal practitioner in the inspection process on the basis that the documents are likely to contain sensitive information about which there might be concerns that even the parties should read, let alone any third party.
This is frequently a consideration in cases of this type where people represent themselves and often requires the balancing of the interests of justice and, in particular, the need of a party representing themselves to be aware of all such information as might be contained in any case made against them, but, on the other hand, protecting appropriately the privacy and rights of individuals who might be affected by the possession of the information by others.
It is a difficult balance, I should say, which often sways in favour of the party the subject of the proceedings. It is for that reason that I have made an order that the father be permitted to inspect all such documents as are produced pursuant to subpoena in this matter.
In my view, though, different considerations apply to a non-legal practitioner being at large to inspect documents produced under subpoena.
Ms Ellis, who represents the mother, submits that the father has been involved in six years of litigation; he has had ample opportunity to inspect documents in the past. He is, as it were, an experienced litigant.
He has, I note, on his own submission, represented himself in the Full Court of this court. Ms Ellis further submits that he is able to hire a lawyer to conduct the inspection process should he so choose.
In my view, the point that the father properly raises about the potential need for him to receive advice about those documents which are inspected can be met by, should he so choose, the father availing himself of advice subsequent to the inspection process.
No argument advanced by the father persuades me that any other person should be present during the inspection of any subpoenaed material, and I refuse his oral application accordingly.
Application re Further Family Report
I will incorporate the following reasons into the earlier two sets of reasons given in this matter.
I have earlier indicated that, as part of the assessment of the Application in a Case made by the father that Mr B represent him as an advocate, I have sought to ascertain for myself how capable the father was of indicating his attitude to, and concerns about, any such directions as are sought by the Independent Children’s Lawyer in this matter.
I have already indicated, I think, that the father has done a perfectly adequate job as a self-represented litigant in expressing all such views and arguments as he needed to address in respect of those directions.
I have already indicated, subject to a qualification which was consented to by the solicitor for the mother and the Independent Children’s Lawyer, that the father agrees or consents to each of the orders made in paragraphs 2, 3 and 4 of those sought by the Independent Children’s Lawyer.
It seems abundantly plain to me that it was not, in any event, necessary for Mr B to act as an advocate for the father in respect of those procedural matters. So, too, the oral application for him to be accompanied on the inspection of documents.
A further issue arises, with respect to the order (which the father consents to) which will be made in respect of paragraph 4 of the directions sought by the Independent Children’s Lawyer. That order will see the matter being adjourned to the Magellan Registrar for the making of trial directions, in circumstances where all issues otherwise necessary to be dealt with by the court will have eventuated in the matter being readied for final hearing.
That further issue raised by the father (which I propose to address in a moment) is that he opposes a further report being prepared by Ms S (as sought by the mother and the Independent Children's Lawyer). He says that he would be prejudiced because he seeks to put before the court material in opposition to that order.
I propose now to seek argument from both Ms Berck and Ms Ellis in respect of that issue.
RECORDED : NOT TRANSCRIBED
The Independent Children’s Lawyer and Ms Ellis, the solicitor for the mother, agree, as it seems to me with respect proper they ought, that, in circumstances where the father advises the court that he received the notification from the Independent Children’s Lawyer posted on 20 October 2010, together with the directions sought by the Independent Children’s Lawyer only yesterday, that he be given an opportunity to make application for such order as he might seek in respect of that proposed direction.
The father has indicated today that he would seek to oppose Ms S preparing what is, in effect, an updated report and indicates to the court that he would propose to put affidavit material before the court (as I infer, seeking to indicate that Ms S has told untruths on previous occasions and is otherwise not a person who the court should countenance preparing an updated report).
It seems to me appropriate and proper that the father be given an opportunity to properly prepare his response to that, and I propose to make directions that the father file an Application in a Case supported by such affidavit material as he might consider appropriate, setting out the orders that he seeks in respect of the proposed direction number 1 sought by the Independent Children’s Lawyer in these proceedings.
RECORDED : NOT TRANSCRIBED
I propose to direct the father to file and serve an Application in a Case, seeking such order as he might seek in response to paragraph 1 of the directions sought by the Independent Children’s Lawyer today, by 4.00pm on Friday, 26 November 2010. That gives him about three and a half weeks.
I am going to order that he file and serve an affidavit or affidavits in support of that application by the same time on the same date.
RECORDED : NOT TRANSCRIBED
I will list that matter for hearing, that application about Ms S, at 11.00am on 8 December 2010 before me.
RECORDED : NOT TRANSCRIBED
Advocacy by Mr B Otherwise
I will, then, now address the substantive application filed by the father that Mr B otherwise act as his advocate.
As will be clear from the manner in which these proceedings have been conducted, I have had regard generally to Division 12A of the Act and the mandatory obligations cast upon the court by reference to the sections within that Division, including, in particular, section 69ZN.
In particular, there is a need to bring cogency to the further management of this matter so as to permit of the final parenting trial in respect of the child, be heard as expeditiously as possible.
This includes the need for neither the court nor any of the parties to become sidetracked on procedural issues that might be seen as being ancillary or incidental to the central issues pertaining to the child’s best interests.
It will be plain from the earlier reasons given, and the orders that I have made emanating therefrom, that I am firmly of the view that the father has conducted himself quite appropriately and adequately as a self-represented person before my Court, assisted as he was by Mr B acting as a “silent McKenzie’s friend” for the purposes of these proceedings.
I make it plain, then, that I have seen no evidence before me in the manner in which the father has conducted these proceedings that he has been in any way, shape, or form, disadvantaged, or suffered in any way other than what the unfortunate circumstance of self-representation might produce.
The application, then, for Mr B to act as his advocate generally should be seen primarily in that context. A further context, as I have also pointed out, is that the application is made in respect of what is, in essence, case management by me.
Furthermore, these being child-related proceedings, I propose to rely upon section 69ZX(3) of the Act and have reference to earlier reasons for judgment provided in respect of another matter which might be seen as germane to the application made before me.
I refer first to the decision of the Full Court in Batey-Elton & EltonNo. 2 [2008] FamCAFC 202; a decision of the Full Court of the Family Court of Australia delivered on 20 June 2008.
In a judgment by Warnick J, with whom the other judges of the court, Coleman and May JJ, agreed, his Honour said this within the context of that appeal:
I would not permit Mr B [the reference in that case is a reference to Mr B here] to speak on behalf of Ms Batey-Elton. I would not do so for several reasons. It is the norm, for very good reasons to which [counsel for the mother] referred, that advocates or speakers on behalf of litigants be legal practitioners who are subject to all of the strictures and obligations that apply to them. [Mr B] does not fit into that category. It may be that in an extraordinary case a person not in that category might be permitted to speak on behalf of a litigant but, in my view, this is not an extraordinary case...
His Honour then went on to refer to a number of other reasons specific to the facts of that case that are not applicable here. I would, with the greatest respect to his Honour, adopt the words used by his Honour, with which the other members of the Full Court agreed, and apply them for the purposes of the application made by the father today.
Further, pursuant to the provisions of section 69ZX(3) of the Act, I also place reliance upon a decision entitled Batey-Elton & Elton No. 2 [2010] FamCA 271, a decision of Cronin J given on 15 February 2010.
During the course of that judgment, which again involved an application by Mr B to advocate on behalf of a litigant, and by reference to the provisions of section 144 of the Evidence Act 1995 Commonwealth, his Honour said this:
The common knowledge is confirmed by the decision of the Queensland Court of Appeal in a decision of 2005. Their Honours there refused [Mr B’s] admission as a legal practitioner. Their Honours referred to evidence before them in which it was said [Mr B] had made threats in a proceeding in the Federal Magistrates Court in which he was a party. Their Honours [of the Queensland Court of Appeal] noted that even if the threats were genuinely held, they demonstrated an inability to distinguish between vigorous but legitimate advocacy of a position, and a reaction to an adverse decision of the courts, which is entirely unacceptable in an officer of the court. Their Honours also referred to proceedings in this court.
His Honour’s decision in that case referred also to a decision made by his Honour in which his Honour ordered that Mr B be removed from his courtroom. His Honour’s reasons for judgment refer to the fact that it was necessary for his Honour to request the attendance of the Australian Federal Police, and refers in a number of specific adverse respects to Mr B’s behaviour during the course of those proceedings.
I have looked at each and all of the decisions referred to by the father in the outline of argument annexed to his affidavit filed 20 August 2010.
I am not persuaded that any of those decisions enunciate any principle binding upon me, save that I have a discretion in each case to determine whether I should give leave to a person who is not a legal practitioner permitted by legislation to practice as such in this court, to advocate on behalf of a party.
Also in that regard, I note the decisions referred to by Cronin J, in the decision to which I have just referred, which have more specific reference to a person acting as a McKenzie friend. It will be plain from what I have earlier said in the context of other decisions made today that, at the very outset of these proceedings, I permitted Mr B to act, as it were, as a “silent McKenzie friend.”
As I have pointed out and placed on the record on a number of occasions during the course of the proceedings today, Mr B has, in fact, done so by providing notes to the father during the course of the proceedings. I should emphasise that in doing so Mr B and the father were each complying with the direction I made at the outset of these proceedings for the manner in which Mr B was permitted to participate within them.
What is plain to me, and was plain to me during the course of these proceedings, is that the intervention by Mr B in that manner, as directed by me, provided assistance to the father. In my view, the interests of justice are more than adequately met by Mr B doing so, without advocacy by him.
The further proceedings ordered by me to occur on 8 December 2010 will involve an application by the father, which he indicates today will involve his opposition to Ms S preparing a report for the purposes of the ultimate parenting issues to be decided in this court.
That will be accompanied by affidavit material which will set out the evidence by which such a conclusion is sought to be drawn.
I make it clear that my decision in respect of Mr B acting as an advocate will also apply to those proceedings on 8 December 2010.
For those reasons, the Application in a Case filed by the father on 20 August 2010 is dismissed.
In dismissing that application I reiterate that the application is dismissed in respect of the procedural hearings to take place before me in an attempt to ready this matter for trial as part of the court’s case management system. It does not preclude any application being made before the trial judge (whoever that might be) in similar terms.
But, of course, a decision as to whether Mr B would be permitted to act for an advocate in those final proceedings is a matter for the trial judge who ultimately hears the matter.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 2 November 2010.
Associate:
Date: 15 November 2010
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