Newell & Chesterman
[2023] FedCFamC2F 1074
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Newell & Chesterman [2023] FedCFamC2F 1074
File number(s): ADC 5706 of 2021 Judgment of: JUDGE JENKINS Date of judgment: 16 August 2023 Catchwords: FAMILY LAW – practice and procedure – parenting – Notice of Discontinuance – application to set aside – duress – agreement made at FDR – inadmissible evidence – waiver of legal privilege – flaws in family report – injustice – Notice of Discontinuance set aside Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth) ss10J, 60B, 60H
Cases cited: Cao & Trong [2019] FamCA 336
Dalal & Dalal (No 2) [2019] FCCA 3332
Eames & Eames [2018] FamCAFC 204
Laramie & Caul [2018] FCCA 1371
Maddison v Qualtime Association Inc [2010] FMCA 25
MZZIO v Minister for Immigration & Anor [2014] FCCA 618
Olofsson & Olofsson [2019] FCCA 3467
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 15 August 2023 Date of hearing: 15-16 August 2023 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: Legal Services Commission of South Australia Solicitor for the Independent Children’s Lawyer Ms Olsson from Silkwoods ORDERS
ADC 5706 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NEWELL
Applicant
AND: MS CHESTERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
16 AUGUST 2023
THE COURT ORDERS THAT:
1.The Notice of Discontinuance filed by the Applicant on 6 February 2023 is set aside.
2.Further consideration of the proceedings is adjourned to 22 September 2023 at 9.00am for an interim hearing.
3.Any Applications in a Proceeding with respect to the interim hearing be filed and served within 14 days.
4.Liberty to the parties to file any further material on which they seek to rely at the hearing by no later than 18 September 2023.
5.No later than two (2) business days prior to the interim hearing, each party file and serve a Case Outline document in the approved form which shall not, without leave, exceed five (5) pages in respect of parenting issues and shall include:
(a)A list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is in the best interests of the children to make the orders sought.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
INTRODUCTION
This is a parenting matter concerning X born in 2021.
The parties are X’s mothers. There is also an Independent Children’s Lawyer (“ICL”) in this matter.
X currently lives with the respondent mother and spends no time with the applicant mother.
X was spending time with the applicant mother up and until a Family Dispute Resolution conference (“FDR”) on 30 January 2023.
One week after the FDR, the applicant mother had one last meeting with X to say goodbye and following this she filed a Notice of Discontinuance on 6 February 2023.
The applicant mother now seeks to set aside that Notice of Discontinuance. This is opposed by the respondent mother.
Furthermore, as final orders have not yet been made, the respondent seeks to proceed undefended and asks the Court to make orders that X live with her, that she have sole parental responsibility, to change X’s surname to remove the applicant mother’s surname and various restraints. If such orders were made, the effect would be that there would be no time between the applicant mother and X.
BRIEF BACKGROUND
The parties were in a relationship from somewhere in mid to late-2019 until about July 2021. The respondent is X’s biological mother. X was conceived as a result of an artificial conception procedure which occurred when the parties were in a de facto relationship. It is not in dispute that the applicant mother is X’s parent pursuant to s 60H of the Family Law Act1975 (Cth) (“The Act”).
The parties are, however, in dispute about many aspects of the case, including whether it was their mutual intention to have a child, the involvement of the applicant mother in the lead up to the birth and following the birth, and the amount of time the applicant mother spent with X after separation.
The respondent mother also alleges she was subject to extensive family violence during the relationship which is largely denied by the applicant mother. These matters were not the subject of cross-examination and, in any event, are not central to the issue in dispute before the Court so it is not necessary that I make findings in regard to those issues.
THE LAW
The issue of setting aside a Notice of Discontinuance has been the subject of relatively few decisions. The authorities brought to my attention were all first instant decisions. I am not aware of a Full Court decision which deals with a Notice of Discontinuance where the matter had not otherwise been finalised by way of final orders.
In this case, final orders have not yet been made. Nonetheless, I accept the submission put by counsel for the respondent mother that whilst not bound to follow decisions at first instance as stated by the Full Court in Eames & Eames [2018] FamCAFC 204 at [28] , “judicial comity requires that those decisions be followed unless a judge was convinced that they were “plainly wrong”.”
Counsel for the respondent mother relied on four cases, in particular, that dealt with the Notice of Discontinuance:
·Laramie & Caul [2018] FCCA 1371;
·Olofsson & Olofsson [2019] FCCA 3467;
·Dalal & Dalal (No 2) [2019] FCCA 3332; and
·Cao & Trong [2019] FamCA 336.
I have also identified Maddison v Qualtime Association Inc [2010] FMCA 25, and MZZIO v Minister for Immigration & Anor [2014] FCCA 618.
In each of those cases, it was accepted that the Court has a discretion whether to set aside a Notice of Discontinuance but this discretion is not unfettered and should be subject to certain considerations. Those considerations have been expressed slightly differently in each case. However, they include the following:
·Did the applicant knowingly and voluntarily file the Notice of Discontinuance?
·Was a valid explanation given as to why the Notice of Discontinuance was filed?
·Was the filing of the Notice of Discontinuance procured by fraud or duress?
·Was it filed pursuant to a void or voidable agreement?
·Did the filing of the notice otherwise involve an abuse of process?
·Is the setting aside of the notice necessary to ensure that the Court’s process does not cause an injustice?
·If the Notice of Discontinuance was set aside, does the applicant have no reasonable prospect of success?
·Is there any prejudice occasioned to either party by the grant of an order setting aside the notice or, conversely, by the refusal to grant such an order?
·Whether in all of the circumstances it is just to set aside the notice and whether on discretionary grounds an order should be made setting aside the Notice of Discontinuance.
It is my view and counsel for the respondent mother accepted that these are not a finite list of considerations. It is apparent that some of these factors are in the alternative and some overlap so it is not necessary for the Court to find that each is made out.
THE APPLICANT’S CASE
The applicant mother’s case is that she filed the Notice of Discontinuance on the basis of duress. She filed the Notice of Discontinuance on 6 February 2023 following the FDR Conference on 30 January 2023. Her case is that she was pressured into filing the notice based on advice given before and during the FDR. However, pursuant to s 10J of the Act, evidence of anything said or any admission made by or in the company of a family dispute resolution practitioner is not admissible subject to a few exceptions which were not applicable in this case.
Although not stated in s 10J of the Act, I formed the view that any conversations had in private sessions at the FDR as in between the applicant mother and her advocate and/or the ICL which flowed from conversations in the company of the FDR practitioner should also be inadmissible. In addition, as it would be difficult to compartmentalise advice relating to those conversations and advice said to have been given completely independently, I determined that all discussions at the FDR would be excluded from the evidence.
However, the applicant mother was able to rely on evidence of the advice provided to her prior to the FDR and, in particular, advice given to her by her advocate Ms B during and following a conference that took place on 13 January 2023. At an earlier hearing, the applicant mother waived privilege as to this advice and consequently Ms B prepared an affidavit which was filed in this matter.
THE EVIDENCE
The matter was conducted via Microsoft Teams and although there were occasional technical glitches, I am satisfied I was able to see and hear all of the evidence and submissions.
As there were factual disputes that were required to be determined, the matter proceeded by way of cross-examination. The applicant mother relied upon her own affidavit as well as an affidavit of her partner, Ms C and her advocate Ms B. However, as a large part of Ms C’s affidavit was inadmissible and was struck out, she was not required for cross-examination.
I also had the benefit of the Family Report prepared by family consultant Ms D dated 27 December 2022 (“the Family Report”), although this evidence was not tested at the hearing.
It has not been possible to include every aspect of the evidence in this judgment. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean I have not considered it. Section 140 of the Evidence Act 1995 (Cth) sets out the standard of proof in these proceedings being as to the balance of probabilities.
The evidence of Ms B
Turning to the evidence of Ms B, her evidence before the Court is that she held a conference with Ms Newell on 13 January 2023 via Microsoft Teams which she states went for “well over an hour”. The purpose of the meeting was to discuss the recently released Family Report and the upcoming FDR conference.
Following the Microsoft Teams meeting, Ms B drafted a letter confirming her advice given during the meeting. This was settled by Ms Newell’s solicitor, who sent it to Ms Newell on 17 January 2023. This letter was annexed to Ms B’s affidavit.
In Ms B’s affidavit at [10] she says:
I gave advice, during the conference, to [Ms Newell] that her prospects of success at trial were not looking good following the release of the Family Report.
Under cross-examination, Ms B said that it was her view that the applicant mother’s “application to be a significant carer for [X] was not strong, because of all of the other issues of allegations of family violence and coercive control.” Her view was that the applicant mother “could take the matter to trial, but it may be, there would be an order for no time.”
The Family Report
I identified during the hearing that I had concerns about the content of the Family Report. Namely, that it appears to me the report writer has based her recommendations on whether the applicant mother is a significant caregiver and not a parent. Counsel for the respondent argued that I cannot make a finding about what the report writer meant by significant caregiver as she was not called to give evidence.
However, I note at [111] of the Family Report Ms D says the following:
…in light of concerns regarding the applicant’s lack of standing as [X]’s non-biological parent to parental rights to [X], this raised the question of how continuance of [X]’s relationship with the Applicant, as a significant caregiver, would benefit [X].
At [113] she states:
A further consideration, in relation to the likely benefit to [X]in the event of continuing his relationship with the Applicant, is the question of how the Applicant’s relationship with [X]could benefit the child in comparison to any other non-biological person in his life who cared and loved him.
It certainly appears from these two paragraphs that Ms D is working on the assumption that there is a distinction to be made between a biological parent and a non-biological parent.
However, I accept that this is not tested and, ultimately, I have determined I do not need to make a finding on that issue.
What is clear is that Ms B’s advice was based on her interpretation of the report and that her advice was that Ms Newell was at risk of no time and that she would incur substantial costs leading up to trial. The advice was provided to the applicant mother ahead of the FDR and, whilst what occurred at the FDR was not admissible, there is no reason to believe based on the evidence of Ms B that her advice would have changed at the FDR. Further, although I have no evidence of the ICL’s position during the FDR, the ICL ultimately supported the heads of agreement which provided for no time.
Ms Newell’s evidence is that, as a result of this advice and what occurred at the FDR, which is clearly not admissible, she felt she had no choice but to withdraw from the litigation, or otherwise face the risk of no time and high legal costs.
THE RESPONDENT’S CASE
The respondent mother’s case is that Ms Newell was not under duress. She points to a number of aspects of the evidence in support of that proposition.
The first assertion is that Ms Newell withdrew solely based on legal costs. There is no doubt that costs were an issue for the applicant mother. The applicant mother gave evidence about being assisted financially by her grandmother until the FDR. However, she was thereafter reluctant to ask her grandmother for further funds and, as I understand it, has approached legal aid to see if she is now eligible. However, just because finances were an issue does not mean the mother was not also under duress as a result of the advice she was given, although the precarious financial position, no doubt, added to the pressure the applicant mother was feeling.
It was also argued for the respondent mother that the email sent by the applicant mother to her solicitor, following the FDR was polite and thankful and thus did not support a finding of duress. I do not accept that Ms Newell would necessarily have conveyed her upset in writing. It is also apparent that the purpose of the correspondence was to ensure no further work was done on the matter so as not to incur further costs.
In addition, it was argued that if the applicant mother had felt duress, she had ample opportunity to seek a second opinion in the seven days after the FDR and before filing her Notice of Discontinuance. I also do not accept that proposition. The applicant mother was entitled, in my view, to rely upon the advice given to her at the FDR and prior, and on the evidence I have heard, had no reason to believe she needed a second opinion. In any event, she had advice from both her solicitor and her advocate, Ms B.
It was further argued that the fact that Ms Newell did not file her Notice of Discontinuance for a week after the FDR was proof that she was not under duress. I do not accept that proposition either. I had the benefit of observing the applicant mother give evidence. I accept, based on her evidence, that she was very upset in the week following the FDR and this was a very difficult decision for her to make. It is, therefore, not surprising that it took her a week to file the Notice of Discontinuance which, effectively, brought an end to her relationship with her son. I also accept that, consistent with this decision, she did not attend the mention hearing which occurred shortly thereafter on 8 February 2023.
DETERMINATION
In the end, it is my view that I do not need to determine whether the applicant mother was in fact under duress as I find that based on the evidence presented at this hearing a failure to set aside the Notice of Discontinuance would in any event constitute an injustice.
I find that, based on the advice provided, it was reasonable for the applicant mother to file her Notice of Discontinuance and having heard her evidence, I also accept she did so reluctantly and is genuine in her desire to be part of X’s life.
She also has an arguable case that she should be involved in his care. Ms Newell is X’s mother. It is not in dispute that she was spending regular time with X up and until the FDR. Whilst untested, the reports from the Children’s Contact Centre appear to be positive and as were the observations in the Family Report. There are allegations of family violence but these are also untested and, if proven, there are a myriad of ways in which any such risk may be ameliorated.
In such circumstances, I find that a failure to set aside the Notice of Discontinuance would constitute an injustice and by this, I mean an injustice to X.
Section 60B(2) provides as follows under ss (2):
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
There are no final orders made in this matter. The Court is yet to determine what is in X’s best interests and, furthermore, without Ms Newell’s participation, the Court will be limited in its ability to determine X’s best interests.
I note that counsel for the respondent mother argues that there would be an injustice to the respondent mother and I have considered that. If the notice is set aside, I accept that ongoing litigation will have an impact on the respondent mother both emotionally and financially, but this is outweighed, in my view, by the rights of the child and the broader objects of the Court, as set out under s 60B of the Act.
For all of the foregoing reasons, I make the orders as are set out at the commencement of these proceedings.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 24 August 2023
0
7
0