Merritt & Merritt & Ors

[2016] FamCA 1077

FAMILY COURT OF AUSTRALIA

MERRITT & MERRITT AND ORS [2016] FamCA 1077

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to inspect and copy a court file – Whether documents from these proceedings should be made available for use in parenting proceedings in the Federal Circuit Court (“FCC”) – Where the mother in the FCC proceedings is the partner of the father in these proceedings – Where there are allegations of sexual abuse by the father of the children in these proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay Application – Where the Independent Children’s Lawyer seeks a stay of the delivery of judgment and final orders in these proceedings – Where the ICL is yet to file final submissions – Where the ICL intends to seek leave in the Federal Circuit Court to inspect Court file IN other parenting proceedings to determine whether there is any information relevant to these proceedings.

Family Law Act 1975 (Cth)
Evidence Act 1977 (Qld)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Merritt

RESPONDENT: Ms Merritt

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton

1^ST OTHER PARTY: Mr Deveraux

2^ND OTHER PARTY: Ms Deveraux

FILE NUMBER: BRC 7783 of 2013

DATE DELIVERED: 16 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M. McLennan

SOLICITOR FOR THE APPLICANT: John Walker Lawyers

THE RESPONDENT: No Appearance

INDEPENDENT CHILDREN’S LAWYER:

Ms J. Boulton

Jennifer Boulton Solicitor

COUNSEL FOR THE 1^ST OTHER PARTY: Ms A. Bertone

SOLICITOR FOR THE 1^ST OTHER PARTY: VM Family Law

SOLICITOR FOR THE 2^ND OTHE PARTY:

Ms F.M.M. Kennedy

Delaney & Delaney

Orders

1. That pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth) the parties to the proceedings BRC7332/2011 in the Federal Circuit Court, presently in Judge Vasta’s docket, have leave:

   (a)to search this Court’s file in the proceedings BRC 7783/2013; and

   (b)to inspect the documents forming the Court record in those proceedings; and

   (c)to copy:

   (i)the Family Report of Mr B prepared in those proceedings;

   (ii)the Magellan reports provided to this Court in those proceedings by the Department of Communities, Child Safety and Disability Services;

   (iii)Ms Deveraux’s affidavit of evidence in chief relied upon at the trial in those proceedings by Mr Merritt, those paragraphs of Ms Merritt’s affidavit of evidence in chief in those proceedings in which she details the disclosures made by the subject child (D) and the transcript of the recorded interview the police undertook with the subject child pursuant to s 93A of the Evidence Act 1977 (Qld).

2. That any copies of documents taken pursuant to paragraph (1)(c) hereof, not adduced into evidence in the Federal Circuit Court proceedings and remaining on that Court’s file, shall be returned to this Court after the expiry of the appeal period after the making of final orders in the Federal Circuit Court proceedings.
   
   

3. That the delivery of judgment in this Court’s proceedings BRC7783/2013 is stayed until the end of February, 2017 or until Ms Boulton writes to this Court (with copies to the other parties) informing the Court that judgment can be delivered without further delay, whichever is the earlier to occur. 

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 Merritt & Merritt and Ors 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 7783 of 2013

Mr Merritt

Applicant

And

Ms Merritt

Respondent

And

Independent Children's Lawyer

And

Mr Deveraux

First Other Party

And

Ms Deveraux

Second Other Party

REASONS FOR JUDGMENT

1. In February this year, I completed a trial of competing parenting applications in a matter in the Magellan List and reserved my decision pending the receipt and consideration of written submissions from each of the mother, the father and the Independent Children’s Lawyer. A timetable was set for the filing of those submissions. The last written submissions were to be filed by 27 April 2016.

2. In mid-March, at the request of the ICL, I granted an extension of the time within which her written submissions were to be filed and I extended the time for the other two parties as a consequence.

3. The ICL’s written submissions were not filed by the date provided. In May, the father’s written submissions were filed, without the father’s legal representatives having had the benefit of written submissions from the ICL and the ICL advised the Court that her written submissions would be filed within a week. They were not.

4. I was then away from Court duties on long leave for three months.

5. On 5 September, the parties were told the matter would be mentioned again on 20 September. That day, written submissions for the mother were filed and the Court was informed by counsel for the ICL that the ICL’s written submissions would be filed the next day. I informed the parties that I would proceed to write the judgment whether written submissions of the ICL were filed or not.

6. Regrettably, I have not been able to finalise the judgment yet. On Thursday, 15 December, 2016, I heard an Application in a Case from the ICL, who still has not filed her written submissions, to stay delivery of my judgment for the moment. At the same time, I heard an application from a father who is a party to parenting orders proceedings in the Federal Circuit Court who seeks leave to inspect the file in this case and to copy any documents he considers appropriate to be copied. The two matters are not unrelated.

Some relevant background to these two applications

1. The principal issue in the substantive Merritt matter is an allegation by the mother that the parents’ 7 year old daughter would be at an unacceptable risk of sexual abuse in her father’s care. The mother bases her case on disclosures alleged by her to have been made by the child to her soon after an alleged incident of sexual abuse of the child by the father, supported by similar disclosures reported by the child to police in a recorded interview with the child at around the same time. By interim order made by the former Principal Registrar of the Court, the children have not spent any time, not even supervised time, with the father for over three years now.

2. The father lives with his partner, Ms Deveraux. They have lived together since around August, 2013. She gave affidavit and oral evidence in the proceedings before me. She does not believe Mr Merritt is a risk to his daughter. She has two teenage daughters by a former relationship with Mr Deveraux. By consent order made in 2013, those two girls were living with Ms Deveraux and she had sole parental responsibility for them. The elder of those girls turns 16 in February in the new year and the younger turns 14 in early January.

3. Mr Merritt, Ms Deveraux and the two teenage girls lived in the same household as a family unit for a long time. There was evidence in the Merritt proceedings given by Mr Merritt, Ms Deveraux and a psychologist, Mr B, who had interviewed the two Deveraux girls as well as all the relevant persons in the Merritt family, about the relationship between the Deveraux girls and Mr Merritt.

4. In August of this year, the younger of the two Deveraux girls, according to the evidence of Mr Deveraux, “decided to live with [him] primarily and communicated this to [Ms Deveraux]”.  He said she has been living with him primarily since 30 August.

5. On 8 September, Ms Deveraux commenced proceedings in the Federal Circuit Court for orders that the younger daughter return to live in her care. The Cs agreed to obtain a family report from an experienced social worker to assist them and the Court in the matter.

6. Mr Merritt, when being interviewed by that report writer, showed her a copy of Mr B’s report that was adduced into evidence in the Merritt proceedings. The report writer referred to it and expressed opinion about matters raised in it in her family report provided in the Deveraux matter.

7. Mr Deveraux became aware of the Merritt proceedings and the fact that the Jordan report had been provided to that report writer. He asked for information from Ms Deveraux about the Merritt matter and a copy of the Jordan report. He was not satisfied with the responses he received. He was not provided with a copy of the Mr B report.

8. Mr Deveraux filed an application in the Deveraux proceedings for an order that he be permitted to search this Court’s file in the Merritt proceedings. He now appreciates that application was misplaced, as only a Judge of this Court could make the order he seeks. That is why he is now before this Court.

9. In mid-November, after being served with Mr Deveraux’s application, Ms Deveraux’s solicitors wrote to Mr Deveraux’s solicitors and informed them of the Merritt proceedings in the Magellan List in this Court and that the judgment was reserved following the trial. They informed them, amongst other things, that Ms Deveraux had “never witnessed any sexual impropriety on her partner’s part” and that she is aware that the mother’s accusations in the Merritt case had led to charges being laid against Mr Merritt which were later withdrawn by the Director of Public Prosecutions. That was very much the limit of the information provided.

10. Mr Deveraux said this information caused him “grave concern about the welfare of [his] children”.  His solicitors then wrote to the ICL in the Merritt matter telling her of the Deveraux proceedings and giving her notice of their client’s application to inspect this Court’s file in the Merritt proceedings.

11. On 23 November, Judge Vasta made interim parenting orders in the Deveraux proceedings that provided for the younger daughter to live with Mr Deveraux and for him to have sole parental responsibility for her and for the family to attend upon a family consultant for a short, child inclusive report to be prepared. Judge Vasta adjourned the Deveraux matter for further mention on 16 March, 2017.

18.The ICL then filed an application in the Merritt proceedings in this Court asking me to stay delivery of my judgment whilst she seeks leave from Judge Vasta to inspect the Deveraux file in the FCC to determine if there is anything of relevance for the Merritt proceedings in the Deveraux file. The ICL is concerned about the possibility of a relevant change in circumstances in the household of Mr Merritt and Ms Deveraux about which she thinks it might be necessary to seek to put further evidence before this Court in the Merritt proceedings.

1. Mr Deveraux then filed his application in the Merritt proceedings for orders permitting him to inspect the Merritt Court file and copy documents therein.

The hearing before me and the positions of the parties

1. Mr Deveraux appeared, represented by counsel. Mr Merritt was represented by counsel. The ICL in the Merritt matter, Ms Boulton, appeared. Ms Deveraux was represented by a solicitor.

The Deveraux application

1. Counsel for Mr Deveraux sought orders pursuant to Rule 24.13 of the Family Law Rules. Relevantly, that Rule provides for “a person with a proper interest in the case or in information obtainable from the court record in the case” to search the court record relating to a case and inspect and copy a document forming part of the record, with the permission of the Court.

2. Sub-Rule 24.13(3) sets out some matters the Court must consider when determining whether to give permission to search the file and copy documents on it. They are:

   (a)The purpose for which access is sought;

   (b)Whether the access sought is reasonable for that purpose;

   (c)The need for security of court personnel, parties, children and witnesses;

   (d)Any limits or conditions that should be imposed on access to, or use of, the court record.

3. Counsel made it clear that Mr Deveraux sought the same leave be granted to Ms Deveraux as he was seeking.

4. Mr Merritt opposed the application, as did Ms Deveraux, though her solicitor agreed that if leave was granted to Mr Deveraux then Ms Deveraux should have it too. Ms Boulton did not oppose it. An email from Ms Merritt’s solicitors was admitted into evidence. In that email, Ms Merritt’s position that she did not oppose Mr Deveraux’s application to inspect the file but that she did oppose him being able to take copies of documents because she considered them sensitive was clearly expressed.

5. Counsel for Mr Deveraux submitted that her client does have a proper interest in being able to search the file, and in particular to obtain copies of the family report, particularly as it was seen and referred to by the report writer in the Deveraux case, the Magellan reports and the affidavit of Ms Deveraux filed in the proceedings. She informed the Court that Mr Deveraux and his solicitors were aware that any documents and information obtained could not be used for any other purpose other than in the Deveraux proceedings in the Federal Circuit Court and that her client would not oppose any order that they be returned to the Court when the Deveraux proceedings were concluded.

6. Although counsel for Mr Merritt began by informing the Court that a copy of the Jordan report would be provided to Mr Deveraux as it was accepted that the factual circumstances provided Mr Deveraux with reasonable grounds for expecting to be able to see that, she went on to submit that Mr Deveraux could not otherwise be considered to be a “person with a proper interest in the case or in information obtainable from the court record” within the meaning of that term “proper interest” as used in the relevant part of the Rule. She submitted that could be accepted because he did not intervene in the Merritt matter and was not a party to it. She submitted that his position, including the assertion that he had “grave concern” about the welfare of his children could not be considered reasonable. She submitted that there was no evidence that supported a finding that Mr Deveraux was a person with a proper interest in the Merritt proceedings, and that the Court would consider his application as nothing more than a fishing exercise.

7. Counsel for Mr Merritt also effectively submitted that the court would not consider that Mr Deveraux was seeking permission for a proper purpose and that the privacy of the parties in the Merritt proceedings demanded permission be refused.

The Application of the ICL in the Merritt matter

1. Ms Boulton, in her evidence, referred to the fact that Ms Deveraux had given evidence in the Merritt matter that she and Mr Merritt had lived as a couple  with the two girls since in or about August 2013. She mentioned that Mr Merritt’s case, supported by Ms Deveraux, is that the two Merritt children should live in his care in the same household as Ms Deveraux and the two teenage girls. Ms Boulton submitted that the relative stability of the Merritt-C household compared to the household of Ms Merritt is a relevant matter in the Merritt proceedings. Although Ms Boulton said in her affidavit that it was “a not significant issue”, I understand that to be a typographical error and that Ms Boulton meant to say “a not insignificant issue”. In any event, I am satisfied the latter is a proper description of the issue.

29.Ms Boulton asserts that the question of changed circumstances pertaining to the care of the teenage Deveraux girls is a relevant one in the Merritt case given the most significant issues in the case and the nature of the competing applications. She asserts that the circumstances surrounding the changed circumstances that have recently emerged, namely the younger Deveraux child leaving the mother’s home and going to live in her father’s home “may be directly relevant to the Court’s determination of what parenting orders should be made in the best interests of the Merritt children”.

1. Ms Boulton says she is finalising an application in the Deveraux proceedings for leave to inspect the FCC’s file in that matter and to obtain (if relevant) copies of any documents in those proceedings so that she can consider if there is anything that would “warrant [her] applying to reopen the Family Law Proceedings” in the Merritt matter. 

2. When asked about potential length of the stay of the judgment, Ms Boulton told the Court that the Court could fix the time limit.

32.Counsel for Mr Merritt, in making her submissions in opposition to the ICL’s application for the stay, was, on behalf of her client, understandably critical of the ICL’s failure to have finalised her written submissions before now. She pointed to the repeated assurances that had been given to the Court by and on behalf of the ICL that the written submissions were to have been filed by now and she urged the Court to turn its attention to a speedy finalisation of the judgment in the Merritt matter without any further delay.  In support, she submitted that there was no evidence that the move of the younger teenage Deveraux girl was of any relevance to matters in the Merritt case, so that fact could safely be ignored and the judgment finalised as soon as possible.

My determination

1. With all due respect to counsel for the father and to the solicitor for Ms Deveraux and with due acknowledgment of the frustration the father is undoubtedly feeling in the circumstances of this matter, as I effectively said during the early stages of the hearing of these applications, it is difficult to see how it could be found that Mr Deveraux is not a person with a proper interest in the Merritt case.

2. His teenage daughters have been living in the same household as Mr Merritt since around August 2013. One of those girls (who is almost 14 years old) recently moved from that household to live with her father in his household without either of her parents saying in their affidavits filed in these applications before me anything about what either of them might postulate to be the reasons for that. Ms Deveraux immediately commenced court proceedings to get that child back into her principal care. A family report was quickly sort and prepared by a single expert. The Court was informed the child expressed the view that she wants to live with her father. Mr Deveraux learned, around this time, of the allegations of sexual abuse made against Mr Merritt by Mr Merritt’s former partner and that there were court proceedings about those. At first, he was given scant information about that when he, quite reasonably, asked for some. Mr Deveraux learned that the family report in the Merritt matter had been shared with, considered by and referred to by the family report writer in his matter without him being given an opportunity to see it and comment upon it. Mr Deveraux asserts that his daughter who moved to his care has asked to have counselling and he asserts that he and Ms Deveraux have been in dispute about that.

3. In these circumstances, I am more than satisfied that Mr Deveraux is quite appropriately described as a person with a proper interest in the Merritt case and in information obtainable from the court record in the case. There is no evidence before me that causes me to immediately consider that his application to inspect the file is improperly motivated such that I would refuse him the permission he seeks. Neither am I persuaded that some consideration of the potentially prejudicial effect of anything contained in the documents on the Merritt file on Ms Deveraux’s case in the FCC proceedings as compared to its likely probative value in those proceedings should, at this point in time, persuade me to deny the permission sought.

1. As I said during the hearing, whether or not any of the documents or matters contained in documents on the Merritt court file should be adduced into evidence in the Deveraux proceedings is entirely a matter for Mr Deveraux and/or Ms Deveraux in the first instance and then Judge Vasta in the ultimate instance. As the Judge in whose docket the matter currently finds itself, his Honour will be in the best position by far to determine whether any evidence should be held to be inadmissible in those proceedings because its prejudicial effect outweighs its probative value.

37.I will permit Mr Deveraux’s legal representatives to search this Court’s file in the Merritt litigation and to inspect the documents forming part of the Court record. At this time, I will only give them permission to copy Mr B’s family report, the Magellan reports provided by the Department of Communities, Child Safety and Disability Services and Ms Deveraux’s affidavit of evidence in chief relied upon at the Merritt trial by Mr Merritt. I will also give them permission to copy those paragraphs of Ms Merritt’s affidavit of evidence in chief in which she details the disclosures made by the child and the transcript of the recorded interview the police undertook with Mr Merritt’s daughter pursuant to s 93A of the Evidence Act 1977 (Qld). From my own knowledge of the matter, those are documents, the contents of which, might be considered directly of relevance to parenting proceedings between the Deverauxs. I will require all copies not adduced into evidence in the Deveraux proceedings in the FCC to be returned to this Court after the expiry of the appeal period after the making of final orders in the Deveraux proceedings in the FCC.

38.I am also satisfied that Ms Boulton ought to be given a reasonable period of time within which to apply to Judge Vasta for permission to inspect the Deveraux file in the FCC and to consider whether any further applications in the Merritt proceedings in this Court are warranted. Accordingly, I will stay the delivery of judgment in this matter until the end of February 2017 or until Ms Boulton writes to this Court informing the Court that judgment can be delivered whichever is the earlier. Any further staying of the delivery of the judgment will only occur if considered appropriate after further application properly made.

1. As I have said, the criticism levelled at the ICL by counsel for the father is understandable. The Court has been informed that counsel who appeared for the ICL was seriously ill in some of the period during which the ICL’s written submissions were to be written, but that does not solely explain the failure to complete and file them. In my judgment, given the difficult and responsible role fulfilled by ICL’s in this Court for the relatively minimal recompense they receive for their work, it is, in this instance, sufficient for me to have said that I will deliver judgment when ready (in accordance with the orders I make today) with or without any written submissions from the ICL.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 December 2016.

Associate: 

Date:  16 December 2016