Naczek & Dowler (No. 2)

[2007] FamCA 1256

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER (NO. 2) [2007] FamCA 1256

FAMILY LAW – CHILDREN – Interim hearing Passports – children's passports both Australian and USA – orders for completion of paperwork including personal attendances to ensure the continuation of existing orders

FAMILY LAW – CHILDREN – Family violence – Requirement that details of incident of physical violence between child and husband's girlfriend be set out in open letter form and that the husband sign authority to enable wife to obtain details from investigating police

FAMILY LAW – PRACTICE AND PROCEDURE – Medical records of witness for the husband released but injunctions as to their use  

Family Law Act 1975 (Cth)

APPLICANT: Mr Naczek

RESPONDENT: Ms Dowler

FILE NUMBER: MLF 1222 of 2006

DATE DELIVERED: 24 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St. John

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wood

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

IT IS ORDERED THAT

1. The wife have leave to file an application in a case made returnable on 19 October 2007 at 10:00am (notwithstanding that that date has passed) setting out the orders that she seeks supported by an affidavit already sworn by Mr H save that Annexure CDH-5 shall be removed from such affidavit before it is filed and if it has already been filed, then such Annexure be removed from the file.

2. By 4:00pm on 31 October 2007, the wife do all things required and sign all documents necessary to enable a successful application to be made for an Australian passport for the child L born … February 2001 and to the extent that it is necessary to do so, the husband do acts and things and sign all such documents as may be required to assist in such application.

3. The wife keep the husband informed of the application for the Australian passport for L.

4. The wife do all acts and things required and sign all such documents as may be required to ensure that the child N born … March 1998 retains a current Australian passport.

5. The wife do all things required, sign all necessary documents and attend upon any appropriate person as required, as soon as practicable after being requested by the husband, to renew the passports for the United States of America for the children N and L.

6. The husband have leave to issue a subpoena to Ms W relating to the wife’s attendances upon her Psycho-therapist and such subpoena be returnable at 9:30am on 8 November 2007 in the Registrar’s Subpoena List of cases. Insofar as there is any objection to the release of any such material, the matter be referred to Justice Cronin for determination on a date to be agreed.

7. For the purposes of paragraph 3 of the orders made on 4 October 2007, the parties complete a Trial Plan by 16 November 2007 and provide a copy to the Registrar of the Court for the purposes of the file.

8. All medical records held by the Court pursuant to the orders made on 12 October 2007 relating to Ms G be released for inspection and copying by the legal representatives of all parties including the Independent Children’s Lawyer.

9. For the purposes of paragraph 8 hereof, the wife and all of her servants and agents be and are hereby restrained from disseminating any part of the information contain in the medical records and that they not be used for any other purpose than these proceedings.

10. The wife restrained from retaining any of the said medical records of Ms G or any copies thereof other than for the purposes of their use during these proceedings.

11. The solicitors for the husband forthwith advise the wife’s solicitors and the Independent Children’s Lawyer in writing in an open letter, the date upon which the said medical records were first received by them.

12. By 4:00pm on 16 November 2007, by open letter, the husband through his solicitors advise the wife through her solicitors, details of the following:

    (a)his proposals as to how he will care for the children having regard to his current and proposed professional and employment obligations;

    (b)       by whom the children will be cared for during periods of his absence because of  employment and professional obligations;

    (c)       if his relationship with Ms G is not permanently at an end, the details of the relationship or potential relationship with Ms G;

    (d)       dates and details of any incident between N and/or L and Ms G at any time prior to 4 October 2007 in which he has had to intervene to protect either of the children or Ms G.

13. By 4:00pm on 16 November 2007, the husband sign any necessary authority to the solicitors for the wife to enable them to obtain first hand information from Constable E of Melbourne West Police as to the incident that occurred on 4 October 2007.

14. By 4:00pm on 16 November 2007, the husband disclose to the wife in writing, a list of all taped conversations between he and the children and/or the wife subsequent to the arrival in Australia of the children from the United Kingdom and upon the request by the wife for discovery and inspection of such recorded conversations, at the expense of the wife, copies of such taped conversations be made available.

15. Any application for security of costs by the wife be listed before Justice Cronin on a date to be agreed between the parties and failing agreement as may be determined by the Associate to Justice Cronin at which time, procedural orders for the filing of affidavit material and/or written submissions be made.

16. The application in a case filed by the husband on 17 October 2007 and the application in a case either filed on 19 October 2007 (or anticipated by these orders) by the wife be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Naczek & Dowling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1222 of 2006

MR NACZEK

Applicant

And

MS DOWLER

Respondent

REASONS FOR JUDGMENT

1. This matter was before me on 4 October 2007 as a result of the parties desiring not to proceed with a resumed defended hearing in December 2006.

2. On 4 October, I fixed the final hearing to be resumed on 18 February 2008 and ordered that the parties negotiate a trial plan to endeavour to limit the time the hearing will take. One of the orders that I made was that the husband’s then partner Ms G attend upon Child Psychiatrist Dr M with the parties themselves and the children, for the purposes of an updated report. One of the disputes before me at that time related to the release of medical records of Ms G. Ms G had not agreed to them being so released notwithstanding that they had been in the possession of the husband’s solicitor for some time.

3. It now transpires that an incident occurred between Ms G and the child N at a Melbourne restaurant very shortly after the hearing date to which I have just referred. N was cut above the left eye. The police became involved and a statement from the husband was obtained.

4. As a consequence of the incident, Ms G and the husband separated and my understanding is that the relationship is now at an end. That precipitated a demand by the wife not only for full information about the incident but also details of Ms G’s medical records. The practitioners for the wife imply that the records have been withheld for some tactical reason. The husband’s practitioners have said that the records were being held by them but they were not the property of the husband. At the earlier hearing, senior counsel for the husband said that Ms G had to be consulted. Ms G initially declined for her records to be used. Senior Counsel for the husband made it clear that the husband wanted the records for the purposes of the hearing and had not objected to them being released.

5. What excited the interest of the wife and was of concern to me, was a statement made by the husband to the Police to the effect that this incident at the restaurant had not been first altercation between the child N and Ms G. Senior Counsel for the husband said that there had been incidents where the husband had had to stop N rather than the other way around. I am not sure what any of that really means and it may not be terribly relevant other than as to issues of credit. I directed that the records be held by Court.  I directed that the solicitors for the husband notify Ms G that she had an opportunity to be heard on the subject of the release of the medical records and I made further orders for the return of the matter before me on Friday 19 October 2007. Subject to some conditions about the release of the material, the objection of Ms G has evaporated.

6. The husband filed an application in a case supported by an affidavit by his solicitor on 7 October 2007. That was within the time I had ordered.

7. The wife did not file within the time that I directed but faxed a copy of the signed affidavit of her solicitor together with an unsigned copy of the Form 2 application in a case direct to my chambers. Senior Counsel for the husband decried the fact that the documents were not only late but sent directly to me. Mr Wood of Counsel for the wife apologised for that occurring. I accept that that was not the appropriate way for the documents to be sent to me but that there was no improper motive intended. As it turned out, I did not read the documents and in the state that they were in, I would not have read them anyway. Leave was sought for the documents to be relied upon and I propose to give that leave in the orders that I make. Before attending to that issue however Mr Wood of Counsel requested, upon the objection being made by Senior Counsel for the husband, that Annexure CDH-5 be removed from the affidavit. I have not read that document. It will however be removed from the Court record.

8. It is important to also note that as a result of the restaurant incident, the wife presumed that the husband’s case was either about to take a significantly different course or was possibly even at an end. His partner would have had a significant involvement in the care of the children. She was not only leaving Australia but presumably leaving his life. That has to also be seen in the context of the husband soon moving to the Hague to live. Just so that the wife was under no misapprehension about the husband’s position, Senior Counsel for the husband said the husband was definitely “boxing on”.

9. Nothing has changed in respect of the real issues to be determined in this case. On the basis of the indication from Senior Counsel it looks as though all issues will be hard fought about the two children. Counsel for the wife has expressed concern about that because as a result of the impending expense, she will have to sell her house. That in its self creates problems about the wife’s case relating to where the children will live which in turn affects the question of whether they still go to the private school they are currently attending. In that light, Counsel for the wife foreshadowed an application would be made (and it now has been made) for the husband to contribute towards the wife’s costs for the purposes of the litigation.

10. Turning then to the various applications before me now, as the husband had filed first, I proposed to deal with his matters.

11. The husband sought orders relating to the wife signing documents in relation to both children having Australian passports. At the same time, he sought an order that the wife sign any document requested by the husband necessary to enable him to renew the United States passports for the two children. The solicitor for the husband had written to the solicitor for the wife in August requesting attention. On 18 October 2007 the solicitors for the wife responded in a comprehensive letter suggesting that international travel for the children be determined at the final resolution of the proceedings and querying the need for multiple passports.

12. Mr Wood of Counsel said that all that was being put was that with this relentless and bitterly fought litigation, it might be better for the international travel position to be left until the final hearing. However, paragraphs 12 to 14 of the orders made on 10 April 2006 made it very clear that the parties were to have obligations in respect of passports for the children and that there was no restriction intended on international travel. No evidence has been given to me of any substance as a basis to vary those orders. What has occurred however is that the United States Embassy now requires personal attendance upon a notary for documents to be signed for the purposes of renewing the passport of a child.

13. I see no reason why I should not protect the integrity of the earlier orders.    

14. The husband’s application then sought the issue of a subpoena to the Psycho-therapist who is apparently currently treating the wife. This therapy was extremely contentious and remains so. The therapy arose out of the recommendation of Dr M and I have delivered a judgment in respect of that issue making it clear that the therapy is not confidential and will be subject to scrutiny. I will not repeat the reasons why I made that order. As I pointed out in discussion in this application, it is not so much the issuing of the subpoena that might give rise to an argument but rather whether the documents ought to be released. Clearly, some consideration needs to be given by everyone as to whether or not there is some prejudice to the therapy but that is a matter for argument and evidence from the Psycho-therapist. Accordingly, I propose to give leave for a subpoena to be issued returnable before a Registrar but the order that I propose to make will note that if there is an objection to the release of any material, the matter is to be referred to me for determination.

15. I turn then to the application of the wife.

16. First, as I have indicated, I propose to give leave for the application to be formally filed.

17. The wife sought an order that all medical records held now by the Court in relation to Ms G be forthwith released for inspection and copying. In the letter marked Annexure E to the affidavit of the husband’s solicitor, it is made clear that Ms G has now given her unequivocal consent to the release of the medical records subject to two caveats. Both of those caveats sought undertakings from a number of people. I do not propose seek undertakings having regard to the contentious nature of the proceedings generally but rather to make orders.

18. The wife then sought an order that the husband’s solicitors forthwith advise her solicitors as well as the Independent Children’s Lawyer, full details about when the medical records were received by them and by whom those records were viewed.

19. As I have earlier mentioned, there is considerable angst amongst the lawyers about this issue as a result of statements that a number of lawyers have made apparently outside of the Courtroom but also inside it about the release of these medical records.

20. During the period since I adjourned the substantive proceedings in April 2007, a notification was made to the Department of Human Services about the children and according to Counsel for the wife, the notifier was Ms G. In addition, I have also pointed out, there is the vague statement to the police by the husband about having to protect the child N from Ms G in circumstances where Senior Counsel indicated to me that it was the other way around. I have presumed that there is some forensic issue here but having regard to the provisions of Divisions 12A of Part VII of the Family Law Act, it seems to me to potentially be of very limited value particularly now as Ms G is no longer a part of the husband’s life. I intend to try and contain the dispute bearing in mind that my major focus is on the proposals that each party has put forward purporting to advance the best interests of the children’s futures. I propose to order that the solicitors for the husband advise the solicitors for the wife that date upon which they received the records but nothing further on that issue.

21. The wife then seeks that the husband file an affidavit in respect of a variety of matters including details of the relationship with Ms G and in particular the events at the restaurant on 4 October 2007. I have previously made provision for orders for the husband to file updating affidavit material for the purposes of the resumed hearing in February. It is important however that Dr M when resuming his task of examining the children and their relationship with each of the parents, knows exactly what each party is proposing for the future care of the children. At the time Dr M undertook that task previously, Ms G was a significant part of the husband’s life and his future proposal. This issue also affects the potential financial ramifications for the wife in the preparation of her case.

22. One of the matters that the wife seeks in affidavit form is the “status of the husband’s current and intended future relationship (any) with Ms [G] [sic]”. I have been told by Senior Counsel for the husband that the relationship is at an end. I have concluded that that is an emphatic end to the relationship and I will make an order that if that is not right, then the husband is required to state in an open letter something to the contrary.

23. I do not propose to exacerbate the cost position by requiring an affidavit from the husband at this stage but rather an open letter setting out a number of matters that will directly focus on the question of his proposal. I see no reason why the wife should not be made aware of that now rather than to wait for an affidavit in due course as I have previously ordered.

24. The wife has also sought orders in relation to the incident at the restaurant but again, I will presume that the details are accurately set out in a statement of the husband to the police but if I am incorrect in relation to that, I will require the husband to state in an open letter, the more comprehensive details as well as authorise the solicitors for the wife to speak to the investigating officer to obtain details about any proposed prosecution of Ms G. I do that on the basis that it is important for the wife to know whether the children are going to be involved in any police investigation or prosecution further as that may have a direct impact upon not only her obligations but on the welfare of the children.

25. Another current issue that has been vaguely mentioned by Senior Counsel for the husband is that the problems asserted by the husband throughout the proceedings in relation to the question of his telephone communication with the children has continued. It seems that the conversations have been comprehensively taped. Whilst the wife seeks details in affidavit form of difficulties and/or problems asserted by the husband in respect of the telephone time, I propose to simply order that there be discovery to avoid this issue becoming one that would surprise either party.

26. The next issue relates to the question of the updated report of Dr M. Mr Wood of Counsel said that it would be in his client’s interests in many ways for the report to be delayed because of the fact that his client is continuing her therapy but that it is necessary to bring it forward because of the financial implications for the trial. As he points out, it may very well be that after Dr M reviews the situation, some negotiations can commence. Sadly, I think that that appears to be a forlorn hope having regard to the observation that Mr St John of Senior Counsel made that the husband was “boxing on”. I have previously ordered the preparation of the updated report and the Independent Children’s Lawyer had made arrangements for Dr M to commence that in January. That will be at a time when the husband has spent some time with the children and I see no reason to change that position.

1. The next issue relates to the question of an order that the husband pay to the wife by way of security for her costs a lump sum to be determined by the Court. I was not prepared to determine the matter having regard to the lateness with which the application was made not to mention the vagueness of it. Mr Wood indicated to me that it was a “Barro type” application rather than the traditional security for costs sort of argument. That gives rise to the question of the jurisdiction to make an order including an order for costs in circumstances where all of the provisions of Section 117 of the Family Law Act would have to be considered. The parties need to consider this position carefully. I have very few opportunities between now and February 2008 to give this case any significant time for such an issue. If the parties or either of them desire to litigate that issue, it will have to be within a confined time prior to my obligations to other cases and I will require a written outline of argument which can be addressed. Comprehensive financial details will need to be filed by both parties.

2. Finally, the issue was raised by the Independent Children’s Lawyer of ordering the parties to complete the trial plan that I earlier ordered. I did not set a time limit. I was urged by the Independent Children’s Lawyer’s Counsel to set some time limits because of what appears to be a deteriorating relationship between the lawyers. I have no doubt that Counsel can and will do their job properly and professionally but it may focus the attention of everyone if I set some time limits within which this plan is to be completed.

3. Accordingly, I propose to make orders.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate

Date:  24 October 2007