Newett and Newett & Anor (No 3)

[2020] FamCA 822

FAMILY COURT OF AUSTRALIA

NEWETT & NEWETT AND ANOR (NO. 3) [2020] FamCA 822

FAMILY LAW – PRACTICE AND PROCEDURE – applications filed by the mother and the Independent Children’s Lawyer – where the Court does not require the father to obtain updated evidence in respect of his health issues – where the Court finds the parties are entitled to know what documents the mother provided to single expert – where although there is no previous order for the appointment of the expert, the Court regards the expert as an expert witness retained jointly by the parties – where the Independent Children’s Lawyer is permitted to ask the expert a question to clarify his report – where the Court is not prepared to make an order in respect of a motor vehicle on the basis that the final hearing is less than three months away – where the mother is permitted to file contravention applications she previously sought to file that had not been accepted for filing by the Registry – where earlier documents relating to the estate of the father’s relative have no relevance to the financial proceedings.

Family Law Act 1975 (Cth) ss 75(2)(o), 102NA

De Angelis & De Angelis [1999] FamCA 1609
White & Tulloch & White [1995] FamCA 127

APPLICANT: Mr Newett

FIRST RESPONDENT: Ms Newett

SECOND RESPONDENT: Ms Adlam

FILE NUMBER: BRC 2179 of 2018

DATE DELIVERED: 3 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr S Richardson

Damien Greer Lawyers

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter

Carter Farquar Lawyers

Orders

1. That Orders 1 to 4 and 9 sought in the amended Application in a Case filed by the Independent Children’s Lawyer on 26 August 2020 be dismissed.

2. That the Court declares that the documents provided under tab “(12) Dr A Materials” saved to the USB delivered by the mother to the Court pursuant to Order 3 made 12 May 2020 are the documents that the mother presented to Dr A at interview on 17 August 2018.

3. That the Independent Children’s Lawyer and the parties have leave to copy the documents produced by the mother under the tab “(12) Dr A materials”.

4. That the Independent Children’s Lawyer and the parties have leave to copy the material produced by Dr A pursuant to the subpoena of the mother filed on 20 December 2019.

5. That the Court, having heard argument, takes the view that Dr A, although not formally appointed as a Court Expert/Single Expert under the Family Court Rules 2004, has nonetheless undertaken the role as an independent expert and the Independent Children’s Lawyer intends to rely on the evidence at trial, the Court deems Dr A to be an expert called by the Independent Children’s Lawyer and both parties shall have, to the extent Dr A’s reports are relied upon, the opportunity to cross-examine Dr A.

6. That the Court gives leave to the Independent Children’s Lawyer to forward a question to Dr A in the following terms:

   Dear Doctor

   The Court has made orders allowing the delivery of certain questions to you in respect of your report and the documents you delivered to the court pursuant to the subpoena of the mother.

   They are these:

   (i)In reference to the words “but not included them in this report” in the last paragraph on page 20 of your report dated 16 October 2018, please clarify if those words mean that you did not list or describe the documents in your report or that you did not consider the documents?

   (ii)You delivered documents in response to a subpoena of the mother filed 20 December 2019. Did those documents contain all of the documents delivered to you by the mother at interview on 17 August 2018?

   Thanks

7. That Orders 4, 5 and 8 sought in the amended Application in a Case filed by the mother at 2.05am on 19 August 2020 be dismissed.

8. That any applications for contravention the mother sought to file in February 2020 be filed and be returnable before a Registrar on the same date as the other contravention applications that have been filed.

9. That Orders 5, 6, 7, 8A, 8B, 9, 10, 11, 12, 13, 14, 15 and 16 sought in the amended Application in a Case filed by the mother at 1.44am on 19 August 2020 be dismissed.

10. That Order 1 sought in the Application in a Case filed by the mother on 18 August 2020 be dismissed.

11. That these proceedings be adjourned for Interim Hearing regarding the parenting arrangements, noting that Orders made on 17 June 2020 (in anticipation of a trial commencing 28 September 2020) do not make provision for time after 27 September 2020, at 2.30pm on 2 October 2020 in the Family Court of Australia at Brisbane.

12. That the parties have leave to appear by telephone on 2 October 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

    (a)They shall each telephone [phone] (within Australia only) (toll free) by 2.25pm on 2 October 2020;

    (b)Any party dialling in from outside of Australia shall telephone +61 (0) 7 … (with the necessary international dialling codes);

    (c)They shall each then enter the pass code…; and

    (d)Hold the line until the Court is ready to connect and proceed with the matter.

13. That each party shall file and serve on each other by no later than 4.00pm on 23 September 2020 one (1) short affidavit of evidence in relation to:

    (a)       how the interim Orders made on 17 June 2020 have progressed; and

    (b)proposals for further interim orders including for the Christmas school holidays and Christmas Day/Boxing Day.

14. That judgment be reserved on the mother’s application to discharge the Independent Children’s Lawyer to a date to be advised.

15. That Order 17 of Orders made 12 May 2020 which bifurcated the property and parenting proceedings be discharged.

16. That both the property and parenting proceedings shall proceed to trial commencing 30 November 2020.

17. That noting that the unrepresented mother asserts that the father has not made full and complete disclosure, she is given leave to file, and if she chooses to do so, must file by no later than 4.00pm on 25 September 2020 an Application in a Case seeking specific discovery that she says the father has been requested to make but has refused to make. If the mother files such an application as directed it shall also be listed for Interim Hearing at 2.30pm on 2 October 2020 in the Family Court of Australia at Brisbane.

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 Newett & Newett and Anor 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 2179 of 2018

Mr Newett

Applicant

And

Ms Newett

Respondent

And

Ms Adlam

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Parenting

1. I propose to dismiss the Independent Children’s Lawyer’s Application for orders 1, 2, 3 and 4, set out in his Application in a Case filed 6 August 2020 and amended 26 August 2020.  In my view, in an adversarial system, it is a matter for the parties to put before the Court the evidence they rely upon, consistent with an earlier direction.  The father has done that, relying upon the evidence of consultant neurologist, Dr FF, in relation to a report dated 15 July 2020.  Whilst the mother – and maybe even the Independent Children’s Lawyer – may have some questions about the father’s condition, they are best directed to the treating neurologist.

2. The father does not have a treating psychiatrist and there is nothing that would suggest to me that it would be appropriate to make the order by way of a single expert, or otherwise require the father to conduct his case in a particular way.  The father has put his evidence before the Court.  It can be a matter for cross-examination.  I will otherwise rely upon the exchange with the parties today.

3. In my view, it is quite appropriate that orders 5 and 6 as sought by the Independent Children’s Lawyer be made and I make those orders.  I do so understanding the mother says she complied with an earlier direction by providing a USB that included not only these documents but other documents sought by the Order of 12 May 2020 (Order 1).

4. It is therefore appropriate to allow the parties, who will be entitled to cross-examine Dr A at the trial, (if he is relied upon to give evidence by one of the parties) to know what material was before Dr A for the purposes of forming his opinion.  The mother says she gave certain documents to him.  The parties ought to be entitled to know what the mother says she gave to Dr A.  Accordingly, orders 5 and 6 will be made.  I will also make Order 7.

5. During the course of the parenting proceedings, I am told, and I accept, that a former family report writer, Mr B, prepared a family report in which he identified it may be useful to the Court to have psychiatric examinations of the parties.  I am told by Mr Carter and I am prepared to accept that the report was made available on or about 10 July 2018.  Two days after the report appears to have been released, the matter was before a Judicial Officer in the Federal Circuit Court of Australia.  That Judge, Judge Jarrett, made orders on 12 July 2018.  Although Judge Jarrett appointed a single expert to value the property at Suburb C, the Order does not include nor have I been taken to any order made by any Judicial Officer appointing Dr A as a single expert under the Family Law Rules 2004 (Cth) or a Court expert under the Federal Circuit Court Rules 2001 (Cth).

6. However, it seems to me clear from the reading of the Order made 12 July 2018 that his Honour was informed that:

   [t]he parties have organised to attend upon Dr A in early September for the purposes of procuring a Family Report.

7. That is a notation which, it seems to me, is in error.  Dr A was retained not to prepare a family report, but a psychiatric assessment of the parties.  The fact that Dr A would have a cost for doing so is identified by Order 2 made by Judge Jarrett in which he says that:

   [t]he father shall meet the costs of the report to be prepared by Dr A in the first instance but the ultimate incidence of those costs be reserved to trial.

8. I am told, and I accept, that the mother, on or about 16 August 2018 and the father on or about 17 August 2018, submitted to an examination by Dr A.  Now, I accept that the mother apparently had at the time, and still has, some serious misgivings, about the way in which Dr A was appointed; her consultation and, no doubt, as it seems apparent from her remarks today, the opinions he expresses about her and, perhaps, even the father.

9. Nonetheless, the mother did attend upon Dr A and he has prepared a report.  Dr A is a professional witness.  He is used to giving evidence in Courts like the Family Court of Australia.  He is, like all witnesses relied upon in a case, capable of being the subject of cross-examination.  The mother, today, raises issues about the procedural fairness in which Dr A was appointed.  They are matters for trial.

10. If, when the mother gains her representation, an argument is being advanced at trial that Dr A’s evidence in respect of the mother or any other party should not be relied upon, then that is a matter that can be dealt with at trial.  I do not propose to ventilate the matter further today but note that the mother may well seek to do so as a preliminary issue at the hearing of the parenting case which is scheduled to commence on 30 November 2020.

11. In my view, even though Dr A was not, by Order, appointed as a Court expert under the Federal Circuit Court Rules 2001 (Cth), he undertook a role similar to a Court expert. He was paid for by the father and the parties are said to have agreed to attend but, more importantly, did attend.

12. Without in any way reducing the capacity for the mother at a trial to argue that the Independent Children’s Lawyer not be entitled to rely upon Dr A’s evidence, I propose to regard Dr A as an expert witness retained jointly by the parties.  But that does not, as I say, go to whether or not the mother can persuade the Court, at the trial, whether Dr A’s evidence can be relied upon.

13. In that respect then, and in those circumstances, I propose to make the Order sought by the Independent Children’s Lawyer, but with this variation.  The order will be as follows:

    a)That the Court, having heard argument, takes the view that Dr A, although not formally appointed as a Court Expert/Single Expert under the Family Court Rules 2004, has nonetheless undertaken the role as an independent expert and the Independent Children’s Lawyer intends to rely on the evidence at trial, the Court deems Dr A to be an expert called by the Independent Children’s Lawyer and both parties shall have, to the extent Dr A’s reports are relied upon, the opportunity to cross-examine Dr A.

    b)That the Court gives leave to the Independent Children’s Lawyer to forward a question to Dr A in the following terms:

    Dear Doctor

    The Court has made orders allowing the delivery of certain questions to you in respect of your report and the documents you delivered to the court pursuant to the subpoena of the mother.

    They are these:

    (i)In reference to the words “but not included them in this report” in the last paragraph on page 20 of your report dated 16 October 2018, please clarify if those words mean that you did not list or describe the documents in your report or that you did not consider the documents?

    (ii)You delivered documents in response to a subpoena of the mother filed 20 December 2019. Did those documents contain all of the documents delivered to you by the mother at interview on 17 August 2018?

    Thanks

Property

1. On 17 June 2020, I made an Order (Order 8 ) in the following terms:

   That noting that the Motor Vehicle 2 is currently with a repairer and that:

   a.repairs to the vehicle have been approved by the comprehensive insurer and are now being undertaken; and

   b.the father says he has paid the $600.00 excess;

   the Court orders that upon the repairs being completed the Motor Vehicle 2 shall be returned to the mother and/or she has authority to collect the vehicle from the repairer.

2. The evidence is that the car was returned to the mother on or about 6 July 2020.  The mother says that, “the car is unroadworthy, unregistered and uninsured”.  As a result, the mother seeks, in her Application in a Case, which is before me, an Order at paragraph 4 in these terms:

   That within 24 hours of the making of this Order the [f]ather is to return the [m]other’s Motor Vehicle 1 vehicle registration … in clean and roadworthy, registered and comprehensively insured condition to the [m]other’s residence … and that in the alternative, the [f]ather pay on a weekly basis to the [m]other the full rental costs of renting a similar vehicle at $400.00 per week until the [m]other’s vehicle is returned to her possession.

3. The Court is aware that the mother has been without a vehicle.  That was the reason the Court made Order 8 on 17 June 2020.  The mother is asking the Court to exercise a partial property power less than three months before a trial in respect of all the issues is to be heard.  Whilst I accept the issue of the mother having access to a car has been an ongoing issue since after separation in January 2018, I am not prepared at this time, in the exercise of my discretion, to deal with one discrete aspect of the property pool – namely a car.  It is a matter for the mother how she deals with the Motor Vehicle 1 which she has possession of, although, it seems, there might be some argument about who has the ownership of it.

4. In the circumstances, I do not propose to make the orders sought at paragraph 4 and 5 of the mother’s Application in a Case filed 19 August 2020.  Those applications are dismissed.

5. I will make a direction that any applications for contravention the mother sought to file in February 2020 be filed and be returnable before a Registrar on the same date as the other contravention applications that have been filed.

6. As far as I am concerned, there is no basis for me to amend Order 7 which I made on 12 May 2020.  I am going to restrict the number of applications being brought by the parties because it is clearly consuming enormous amounts of time and energy where that should be directed towards the substantive issues.  So I am not going to discharge that Order.  And, I think, that really deals with any applications in that Application in a Case.

7. At paragraphs 5 and 6 of the Application in a Case filed by the mother on 19 August 2020 she seeks an order, effectively, that an urgent subpoena relating to the Will of Ms GG be filed and served within 24 hours of this hearing and that the mother be permitted to file additional urgent subpoenae in relation to the will of Ms GG, certain financial matters and some medical health of Mr Newett wherever necessary and that the father be required to pay the cost of all subpoenae.  The order sought is extremely wide.

8. Accepting the mother is, again, unrepresented, despite two lawyers having been appointed under the s 102NA scheme and noting that she is a very articulate and informed unrepresented litigant, it is disappointing that, yet again, having already indicated to her solicitor on the record, at the time, of the difficulties in this application, that the mother presents and persists with it.

9. The factual matrix is that Ms GG was a relation of the father.  The suggestion is that there may have been an earlier Will made by Ms GG that provided the father with some benefit.  However, what is clear is that when Ms GG died, the Last Will and Testament of that deceased person, probated in the Supreme Court of New South Wales, did not provide any benefit to the husband.

10. The mother today asserts that, in some way, the Will was a forgery or a fraud.  Any such applications in relation to testamentary matters should be brought before a Court with proper jurisdiction and that is the Supreme Court of New South Wales.  Unless there is evidence, and there is none, that the husband was entitled under the Will probated to an interest in the Estate of Ms GG, then any earlier documents relating to Ms GG have no obvious relevance to these proceedings.

11. If, of course, Ms GG had not passed and there was a Will, that may have created an expectation that the husband would receive something, then that expectation for a person then not deceased may, in very limited circumstances, become relevant as a factor under s 75(2)(o) of the Family Law Act 1975 consistent with authorities such as White & Tulloch & White [1995] FamCA 127 and De Angelis & De Angelis [1999] FamCA 1609. No such foundation has been established in this case. Accordingly, the Court dismisses paragraphs 5 and 6 of the mother’s Application in a Case filed 19 August 2020.

12. As far as I am concerned, paragraphs 7, 8A, 8B and 9 are matters for the final hearing and I dismiss the mother’s application for interim relief in that regard.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 September 2020.

Associate: 

Date:  30 September 2020