Newett & Newett and Anor (No. 5)
[2020] FamCA 1023
•30 November 2020
FAMILY COURT OF AUSTRALIA
Newett & Newett and Anor (No. 5) [2020] FamCA 1023
File number(s): BRC 2179 of 2018 Judgment of: BAUMANN J Date of judgment: 30 November 2020 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer seeks leave to withdraw on the first day of trial – Where leave is granted
FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks an adjournment of the trial relating to parenting and property proceedings – Where the father opposes the application – Where the Court adjourns the parenting trial and proceeds with the property trial
Legislation: Family Law Act 1975 Cases cited: Black & Kellner (1992) FLC 92-287
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re K (1994) FLC 92-461
Weir & Weir (1993) FLC 92-338
Number of paragraphs: 34 Date of hearing: 30 November 2020 Place: Brisbane Counsel for the First Applicant: Mr N McGregor Counsel for the First Respondent: Self-represented Counsel for the Second Respondent: Self-represented Counsel for the Independent Children's Lawyer: Ms K Oakley ORDERS
BRC 2179 of 2018 BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 NOVEMBER 2020
THE COURT ORDERS:
1.That leave is given to the Independent Children’s Lawyer, Mr Damien Carter, to withdraw as the Independent Children’s Lawyer in these proceedings.
2.That the Final Hearing of the parenting matters be adjourned to a date to be fixed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
APPLICATION BY INDEPENDENT CHILDREN’S LAWYER TO WITHDRAW
In these proceedings, which were listed for a five day trial commencing half an hour ago, an oral application is made in unusual circumstances by counsel, Ms Oakley, for the Independent Children’s Lawyer (“ICL”) Mr Carter, that Mr Carter be given leave to withdraw from continuing in his role as the ICL. I say unusual circumstances because the record will reveal that the unrepresented mother has, in the past, brought more than one application that Mr Carter be discharged as the ICL for alleged bias and/or the mother would allege incompetence. Each one of those applications has been dismissed, and Mr Carter has continued in accordance with the best traditions of an ICL to prepare for the case. Mr Carter has retained experienced counsel. All of this is at the cost to the public purse; Mr Carter, of course, being funded by grants from the Legal Aid Queensland office.
The application to withdraw arises from, as exhibits 1 and 2 identify, a decision by the mother to launch, at least initially on 13 November 2020, a private criminal prosecution against Mr Carter. Exhibits 1 and 2 (exhibit 2 being an amendment to the complaint and summons under the Justices Act 1886) identifies very serious indictable offences, many of them, launched against Mr Carter personally. The late filing of this complaint, namely, less than three weeks before trial that has already been adjourned once and has been relisted to commence today, is troubling.
Nonetheless, Mr Carter, through his counsel and in reliance upon authorities such as the decision of Forrest J in Dean & Susskind [2012] FamCA 897, effectively seeks to withdraw in the best interests of ensuring that ICLs cannot be perceived as being other than independent, which is one of the features of the appointment. It is worth recording that, of course, the appointment of a particular ICL is a function administratively undertaken by the Legal Aid office of Queensland, not by the Court. The Court merely makes an order and prevails upon Legal Aid to fund the appointment and identify a particular lawyer.
I want to make it clear that if the application had been made to discharge the ICL today I would have dismissed it. In my view, there is not a basis for Mr Carter to be discharged as ICL, however, that is not the test, in my view. In my view, Mr Carter, like all ICLs throughout the country, having been required to meet certain standards of Legal Aid Commissions around the country through training and experience, voluntarily accept an invitation to take on matters as the ICL knowing they are usually the most difficult parenting cases, and they do say generally at a rate of remuneration much less than that which persons in the market can otherwise command.
It is, in every sense, a public service, and it is, in every sense, in my view, assistance by experienced practitioners offered to the Court to assist the Court in the administration of justice. I propose to allow Mr Carter to withdraw. I do so thanking him for his efforts to date. I do so because I am not aware of any authority or principle that would persuade a judge, and certainly this Judge, to require an ICL, against their conscience and/or view of their position, to maintain a role as an ICL against their wishes.
There may be a consequence, of course, in a number of different ways for the decision which is made and in particular in this trial, however they are not a matter that concern or should concern Mr Carter. Accordingly, the application for withdrawing from this matter, one which is not opposed by the unrepresented mother and the unrepresented Second Respondent maternal grandmother Ms Adlam, and acknowledged by Mr McGregor on behalf of the father as, although consequential to the ongoing processes of the Court, understood by the father in the circumstances, will be granted.
APPLICATION TO ADJOURN THE SUBSTANTIVE PROCEEDINGS
The proceedings between the Applicant husband/father and the Respondent wife/mother have been on foot for some time, and in fact were commenced by the father initially in the Federal Circuit Court of Australia by the Application that he filed on 1 March 2018. As the history of this matter sets out, although the father left the former matrimonial home at R Street, Suburb JJ shortly after separation back in January 2018, the proceedings have been on foot and orders had been made by Judges of the Federal Circuit Court of Australia that provided for the children, X born in 2011, Y born in 2013 and Z born in 2014, to live with the mother and for the father to spend substantial and significant time with them.
Despite those orders, for reasons which the father articulated in affidavits at the time, the father withheld the children and immediately brought an action seeking that the children live with him. He claimed that the children were at risk in the care of the mother, and he relied upon, it seems, evidence from a nanny, Ms K, who had commenced working for the mother post-separation in or about September 2018. Also available to a Judge of the Federal Circuit Court of Australia at an interim hearing conducted in late February 2019, was a report from Dr A, a consultant Psychiatrist, arising from interviews he conducted of the mother on 16 August 2018 and the father on 17 August 2018.
In earlier Reasons for Judgment, particularly those that I delivered relating to interim orders I made (see Newett & Newett and Anor [2020] FamCA 470) after a judge of the Federal Circuit Court of Australia on 6 March 2019 made interim orders that the children live with the father immediately and spend only supervised time with the mother (and even though those events are only 18 months ago), the proceedings have been difficult to manage and have been multi-faceted involving a number of Courts, not always involving the mother and father, but third parties and are, in any sense, complex and difficult.
The effect of the Orders made by this Court on 17 June 2020 effectively moved the children to unsupervised day time with the mother whilst remaining living with the father. Because of the serious allegations of family violence that the mother asserts against the father and, to be fair, those asserted by the father against the mother which had been the subject of a domestic violence trial before the Magistrates Court in December 2019, orders were made for the mother, who is unrepresented and, in fact, for any party unrepresented, to have the benefit of funding under the – what is called loosely ‘cross-examination scheme’ arising from the legislative intent of s 102NA of the Family Law Act 1975.
The father has at all times been represented by solicitors. The mother has had previous representation before the s 102NA cross-examination scheme became an option as a result of the Court’s Orders. The Court had earlier listed the matter for trial to commence in relation to both property and parenting matters, having decided they should be heard together, commencing 28 September 2020. Shortly before that trial it became apparent that lawyers engaged by the mother through the s 102NA cross-examination scheme would not have been adequately prepared for a trial commencing 28 September 2020 and the earlier trial was adjourned.
The matter was listed for trial to commence today, 30 November 2020. For reasons already delivered earlier today, Mr Damien Carter, the ICL, who accepted an invitation by Legal Aid Queensland to be the ICL in this matter some months ago, sought leave to withdraw. For the reasons that have already been articulated, that leave was given. Accordingly, as we stand at this point in time an order exists for the engagement of an ICL, but we do not have one. A further complication in this case is that the mother does not have legal representation despite being eligible (because of the family violence orders) mandatorily to representation for the purpose of cross-examination and, in fact, to present her case.
After Mr Carter was given leave to withdraw I confirmed with the mother, as the transcript will reveal, that she continued to press that both the parenting and property proceedings be adjourned, and I have heard submissions in the order of Mr McGregor, counsel for the father, the mother, her mother, who is a party to the parenting proceedings, and then a short reply by Mr McGregor. In these ex tempore reasons I do not propose to recite all of the submissions I have heard. When the mother began her oral submissions I invited her to provide to the Court details of any information she had from Legal Aid Queensland as to her funding under what is called the “cross-examination scheme”. The mother was kind enough to provide to my Associate, and it has been marked as exhibit 3, a letter from Legal Aid Queensland sent to the mother on Tuesday, 17 November 2020. It says as follows:
“I am writing to advise that the Scheme is unable to appoint a further solicitor to your matter as you are not following the conditions of funding. When you applied for funding through the Scheme you agreed to conditions of funding (enclosed below).
Following receipt of your application we appointed HCM Legal to your matter, though they were not able to continue due to not having capacity. Following this we appointed Cooper Maloy. When Cooper Maloy advised that they could not continue to represent you as you were not following advice, we reminded you of the conditions of funding, specifically following advice. We were clear that you needed to follow the advice of the solicitor appointed, otherwise funding could not continue. We then transferred your matter to Aylward Game Solicitors. Aylward Game Solicitors have advised that they are no longer able to represent you due to you not following advice.”
I was careful to try and ensure that the mother did not wave legal professional privilege as to her discussions with her lawyers. She made a comment about some advice she may have received, but I disregarded those comments. She did however, in her submissions, acknowledge that she received advice and she was not willing to take that advice because she did not believe they were representing her case as she wished it to be presented and/or to call the necessary witnesses she required for her case. Whilst Ms Newett says that the actions of Legal Aid are unlawful or not appropriate, that is not a matter for me.
The bottom line is that Legal Aid Queensland have indicated that Ms Newett will not have a lawyer funded by the cross-examination scheme. This means that the mother has not, in terms of at least the parenting and to a degree the property case, put before the Court any evidence for the parenting case by way of the compliance with directions previously made by me. I acknowledge that she has filed a number of affidavits in past applications of which there have been many. However, Ms Newett did, over the weekend, file a very extensive case outline which included a very extensive chronology that deals with both parenting and property matters. She also filed a financial statement.
Mr McGregor, on behalf of the father, opposes an adjournment of the parenting case and of the property case. When called upon to make a submission, he indicated, although clearly not his preference on behalf of his client, that if the parenting case could not proceed at this stage then he would argue that the property case can still proceed. He says, in his submissions, that the delay that would be effected if the case could not proceed as listed is all effectively of the mother’s doing. It is something which the mother strenuously denies. Mr McGregor said it is not open to the mother to manoeuvre a case tactically in the way that she seeks to do. He points to the extensive costs that the father has incurred, to which his affidavit sets out details, well over $350,000, the majority of which, it seems on his evidence, has been funded by his parents. Mr McGregor makes the observation that if the father’s trial does not proceed this week then it is a real prospect that he will be unrepresented. Of course, if the father was unrepresented he would be able to take up the opportunity under s 102NA, he being the person who has the benefit of domestic violence order, that is in currency for five years from December 2019.
The mother was invited by the Court, in the absence of some evidence at this stage, to indicate what the status was of a number of criminal prosecutions she has privately launched nearly all within the last month. As the submissions of Mr Carter, when represented before the Court as the ICL, made clear some proceedings related to Mr Carter and were, in effect, as my reasons indicate, a primary reason why he felt he should withdraw. Whilst there are no criminal proceedings launched by the mother against Dr A, who provided, as I earlier indicated, reasons and opinions as to his cross-sectional assessment of the parties, there have been Supreme Court proceedings launched by the mother.
The mother confirmed that the proceedings were summary dismissed by a judge of the Supreme Court on or about 20 November 2020 and costs orders against her were made. I have no reasons available as to why the proceedings were summary dismissed or for the costs order, however the mother indicated her intention to appeal the decision of the judge and the time has not yet expired to file a notice of appeal. The mother confirmed that, as Mr McGregor indicated, the private prosecution for certain criminal offences launched by the mother against the father initially contained some 66 complaints, and 57 of the complaints have been dismissed by a State Magistrate. The mother has indicated it is her intention to appeal the decision of the Magistrate in so dismissing those proceedings. The remaining proceedings are yet to come back before the Magistrates Court. The mother says they are listed for a committal hearing sometime on or about 14 January 2021, and they involve at least four counts of torture, assault occasioning grievous bodily harm and assault involving strangulation.
The mother has also launched private criminal proceedings against the father’s lawyer, Mr Scott Richardson. As best I can understand from the mother and sufficient for the purposes of today, the mother asserts that Mr Richardson is part of a group of eight persons who, she asserts, were involved in some form of conspiracy that caused the abduction of the children from her. The father’s lawyer has the benefit of a security for costs order requiring the mother to pay an amount of approximately $27,000 to proceed with her prosecution. The application is returnable towards the end of January 2021. The mother says she intends to appeal the Magistrate’s decision to order security for costs.
The mother has commenced proceedings against Sergeant KK and the Queensland Commissioner of Police. Those proceedings were dismissed by the Magistrate, and the mother intends to appeal the decision of the Magistrate in that regard. When the matter was before the Federal Circuit Court of Australia and specifically the Judge of that Court who made the Orders in March 2019 changing residence, the father relied upon an affidavit by Ms K. Ms K has been the subject of a criminal prosecution brought privately by the mother because of what the mother asserts is her criminal conduct in the processes. That summons is not returnable before the Magistrates Court apparently until approximately 12 January.
Ms K’s mother, Ms L, has also been the subject of a private criminal prosecution, and I suspect the same timetable relates to her proceedings, that is that the defendants have not yet been required to answer the charges on a first court date due in January. The mother confirmed that a private criminal prosecution against Mr L, which I take it is the partner of Ms L and probably the father of Ms K, has also been launched.
Mr McGregor says that the case will get no better than it is or worse than it is now, and there is no reason why the matter should not proceed in all respects. I have considered this matter and take a different view. When the Court, and it was not this Court, but an earlier Court, decided that the case required the appointment of an ICL, it no doubt had in mind the factors set out in Re K (1994) FLC 92-461. I am absolutely satisfied, and Mr McGregor could not be heard to disagree, that this is a case where an ICL is required under the principles of law that apply.
Whilst it is of course regrettable that Mr Carter felt, for his reasons as expressed, it was necessary to withdraw as ICL today, the order for the appointment of an ICL still remains. This is not a case where I would be prepared to discharge the order for an ICL, and as a result, in my view, Legal Aid Queensland ought to have the opportunity in accordance with the usual practice to appoint or seek to appoint and retain an ICL in accordance with the Orders of the Court.
Mr McGregor strongly asserts that it is more likely than not that no new lawyer would be prepared to take on this case as an ICL because of the history in which Mr Carter had been subjected, he would say, to attacks by the mother; more than one application for discharge and ultimately criminal prosecutions against him. I am not prepared to accept that is an inevitability. I also accept that if the father loses representation, because he is unable to afford it, as the mother is unable to afford it, then an ICL’s role becomes even more important.
At issue in relation to the parenting issues are the best interests of these three children. I am not prepared to proceed with a parenting case today for the reasons I have given. As to when this Court may be able to deal with it, I note it remains in my docket for the determination, will depend on some factors, including if and when a new ICL is appointed. I accept that the mother’s Application in a Case, which was filed on 18 November 2020, seeks, in essence, an adjournment of trial and a further interim hearing in relation to parenting.
For the reasons given, I will leave until I have dealt with the property proceedings any further interim proceedings, if at all, in relation to parenting matters. It is apparent from what I have said that I do intend to proceed with property proceedings. I do so because, it seems to me, that the issues in respect of property are much more narrow than those set out in the very complicated parenting proceedings.
The father has filed his evidence-in-chief and a case outline. The mother, it seems to me, it could be said, has chosen not to file any evidence-in-chief, even in respect of property proceedings, yet found time to file on 28 November 2020, which of course was yesterday (a Sunday), a very extensive case outline that includes many assertions of fact in relation to property. One only needs to look at the case outline to see how those matters are dealt with. I have indicated to the mother that it may be open, subject to hearing from counsel for the father, when this matter returns for property determination commencing at 10.00 am tomorrow, whether the mother could rely upon her case outline as effectively her statements of fact.
Whilst I accept many of the issues relate to parenting proceedings, which will not be as relevant in the property proceedings, there are, as I say, many allegations in relation to property proceedings. As I have indicated, the mother has chosen to file an updated financial statement. The mother asserts that the father has failed to comply with earlier Orders for discovery and that it would be procedurally unfair to proceed with property alone. I have previously brought to the attention of the unrepresented mother, including during a very long and detailed application I dealt with in respect of discovery issues, which resulted in earlier Orders, that there are more than sufficient authorities and discretion in a judge hearing a property matter, if it is found there had been a failure to disclose, as required, a material and substantial fact. The Court can deal with the evidence of a person who has been found by the Court to be guilty of such behaviour, to treat their evidence overall with more caution.
I referred her to authorities such as Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338. I am satisfied that the Court can proceed with property proceedings, and I propose to do so.
The mother, during the course of her submissions, whilst I appreciate the fact that she does not wish the property trial to proceed, made comments such as she will be homeless or that, “I will sell the home.” The reality is, on the evidence, that the property at R Street, Suburb JJ, which was purchased in or about August 2014 and was the former family home of the intact couple, is the subject of mortgages to a bank, who have threatened to take possession and exercise the rights they have under the Property Law Act1974 (Qld).
There are no applications before me, and the bank has not been joined in any application, to restrain the bank from exercising their legitimate rights. The father says, in his evidence, that he has, in effect, reached some agreement with the bank to forehold any further precipitous action, and as a result, despite an earlier Order that the property be sold, one of which the Full Court, as I recall it, set aside, the mother has continued to reside in the home. The father has, at least in some ways since separation, contributed to the mortgage, but is not doing so at the moment.
As to what orders may do justice and equity between these parties will be a matter that can only be determined when all the evidence has been considered. Accordingly, I propose to bifurcate the proceedings and proceed with property proceedings tomorrow. To give the mother a fair opportunity to consider her position in relation to whether or not she wishes to adopt her case outline as her evidence in the property proceedings, I do not propose to commence the hearing of property proceedings before 10.00 am tomorrow.
In this case, and considering the highly articulate yet unrepresented mother that I have before me, I believe that is appropriate, fair to both parties and procedurally will be a matter as the trial progresses to ensure that the evidence is properly before the Court. I have already put to the mother, of course, that Mr McGregor, a very experienced advocate, is aware of his need to put propositions about his client’s case to the mother, and I am sure he will do so. It will of course even be available to the Court, within the principles identified by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072, to consider questions which the Court of itself may raise, bearing in mind that the mother will not have the capacity, because of the s 102NA restrictions, to personally cross-examine the father.
She can, of course, cross-examine the accountant, although she indicated that will be of little use without the MYOB records, and I propose to deal with that issue in a moment. I also note that, in a sense, in preparation for the property matters proceeding that her mother, who is not a party to the property proceedings, because she seeks no orders, but in respect of a matter which was raised by the husband, has in fact filed an affidavit, which the mother can rely upon in relation to the property proceedings that deals what is asserted to be some rights to distributions from a trust operated by Mr and Mrs Adlam Senior. If she is required for cross-examination, I will require the solicitors and/or counsel for the husband to inform Ms Adlam today, otherwise her attendance tomorrow as a party would not be required, but if she is required to be cross‑examined on her affidavit she will obviously have to be here.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 7 December 2020
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