Newett & Newett (No. 6)
[2021] FamCA 436
•30 June 2021
FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 6) [2021] FamCA 436
File number(s): BRC 2179 of 2018 Judgment of: BAUMANN J Date of judgment: 30 June 2021 Catchwords: FAMILY LAW – PROPERTY – Application for stay of final property Orders – partial stay granted – Application for relief under s 79A adjourned to after the Appeal of final property Orders is determined
FAMILY LAW – CHILDREN – Application for telephone time to occur at a contact centre – Application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge Independent Children’s Lawyer – Application dismissed – Application for father’s solicitor to be restrained from further representing the father – Application dismissed
FAMILY LAW – COSTS – Application for a legal costs payment – Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 79A Cases cited: Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106
Barro& Barro (unreported, Family Court of Australia, Strauss J, 15 September 1980)
Hogan & Hogan (1986) FLC 91-704
Lloyd & Lloyd & Child Representative (2000) FLC 93-045
Newett & Newett and Anor (No. 5) [2020] FamCA 1023
Newett & Newett [2021] FamCA 82
Newett & Newett(No. 3) [2021] FamCA 187
Newett & Newett (No. 5) [2021] FamCA 383
Pitman & Hynes and Anor [2018] FamCA 760
Pitman & Hynes and Anor(No. 2) [2018] FamCA 1015
Trahn & Long (No. 2) [2008] FamCAFC 194
Number of paragraphs: 62 Date of hearing: 22 June 2021 Place: Brisbane Solicitor for the Applicant: Mr S Richardson, Damien Greer Lawyers Solicitor for the First Respondent: Self-represented Solicitor for the Second Respondent: Self-represented Counsel for the Independent Children’s Lawyer: Mr M Taylor Independent Children’s Lawyer: Mr A Kingston, Norman & Kingston ORDERS
BRC 2179 of 2018 BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
First Respondent
AND: MS ADLAM
Second Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS:
1.That the wife’s Application filed 3 June 2021, so far as it seeks relief pursuant to s 79A of the Family Law Act 1975 (Cth) to set aside or vary final property Orders made 20 May 2021, is adjourned to a date to be fixed and re-listed for directions after the wife’s pending Appeal against the property Orders made 20 May 2021 is determined.
2.That the mother’s application to discharge Mr Kingston as the Independent Children’s Lawyer is dismissed.
3.Order 1 of the Orders dated 20 May 2021 is conditionally stayed pending determination of the wife’s Appeal against those Orders, to order that any nett proceeds remaining from the sale of the former family home at Suburb C shall not be distributed to the parties but held in Trust on behalf of the husband and the wife pending determination of the wife’s Appeal.
4.That the wife’s application to stay Order 9(a) of the Orders dated 20 May 2021 is dismissed.
5.That the wife’s application for a legal costs payment of $130,000 is dismissed.
6.That the mother’s application for the father’s solicitor, Mr Scott Richardson, to be restrained from further representing the father is dismissed.
7.That the mother’s application to vary, on an interim basis, Orders 25(a), 25(f) and 27 of the Orders dated 19 March 2021 is dismissed.
8.That other than ordered in this Order, the mother’s Application in a Case filed 29 March 2021, amended Application in a Case filed 9 April 2021 and Application in a Case filed 3 June 2021 are dismissed.
9.That the costs of the parties are reserved to the trial.
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:
On 22 June 2021, a suite of applications by the mother, Ms Newett, were listed before the Court for my determination.
The application by the maternal grandmother, Ms Adlam, filed 14 May 2021 seeking orders for the children X, Y and Z to spend time with the “2nd Respondent/Maternal grandparents and Maternal family during the Queensland June/July School holidays” was dismissed on 22 June 2021 and oral ex tempore Reasons were delivered. They will, as the parties sought, be published in due course.
In respect of the other applications identified in Reasons delivered 9 June 2021 (see Newett & Newett (No. 5) [2021] FamCA 383) at [17] and the relief sought in the mother’s Application in a Case filed 3 June 2021, the written Reasons that are now published deal with those applications.
It is proper to record that at approximately 7.30pm on 21 June 2021, the mother sent an email to my Associate (and copied the other parties) in the following terms:
Your Honour Justice Baumann,
I will not be in attendance at tomorrow's hearing.
I rely upon all filed documents for these applications; and every reference made to any other document, statute, case authority, legal principle, or maxim of equity referred therein.
I require you provide full written Reasons for Judgment and a copy of the full unredacted transcript.
I elect to be absent as I refuse to participate in your torture chamber any further. I refuse to enter your Court room on any occasion and by any method, as you are not operating as a court of law. I therefore operate and participate on the papers only.
Regards
Ms Newett
As a result, when the matter which proceeded by telephone began at 9.00am on 22 June 2021, I was surprised that the mother, contrary to her stated intention, had decided to appear.
In circumstances where I had a lengthy and considered written submissions from the father and the mother, I invited Mr Taylor, Counsel for the Independent Children’s Lawyer (“ICL”) Mr Kingston, to make any oral submissions. He did so. I noted that no evidence had been filed by the ICL in response to the mother’s affidavit in support of her Application that Mr Kingston be discharged. I rule on the mother’s Application below.
Unfortunately, although I attempted to give the mother the opportunity to address me on that first Application supported by the maternal grandmother but opposed by the father, Ms Newett found it difficult to remain on point. Attempts by me, as the transcript will reveal, to redirect the unrepresented mother proved increasingly unsuccessful.
The mother was in the same room, on speaker phone, as her mother, the maternal grandmother, and when I invited Ms Adlam to make any oral submissions she did so, but often in a distressed state adopted the tenor of her daughter’s submissions. I could faintly hear the mother making comments at times when the maternal grandmother was addressing me. As I say, because of the urgency of the application by the maternal grandmother for June school holiday time, I delivered oral Reasons.
Unfortunately, after delivering those oral Reasons, attempts by the Court to engage the mother on the other relief sought - particularly the s 79A type application filed 3 June 2021 – in a calm and respectful manner, failed. The mother constantly interrupted the Court and I found it virtually impossible to obtain an answer to a proposition the Court wished to raise about the mother’s submissions or position. As a result, having given oral Reasons for dismissing the application to spend time by the maternal grandmother, at approximately 9.58am I closed the Court and reserved my Judgment.
I made it clear to the mother that the only pending issue now before me (save for the s 79A application which I will adjourn until the mother’s Appeal against the final property Orders pronounced 20 May 2021 is determined) is the trial on competing parenting applications. That trial is listed to commence for five days from 20 September 2021. Trial directions have been made on 19 March 2021.
The mother continues to assert that she has no intention to participate in any hearing before me; will not enter Queensland for any purpose and regards my Court as a “torture chamber”. She claims proceedings are being filed in the High Court to:
…injunct the Family Court from any further hearing of the matter, on the basis of such fraud and corruption evidence, such blatant disregard for (a) the purpose and intention of the Family Law Act and Human Rights, and (b) for the sanctity of the function and operation of a Chapter III Court; and in the Application seeks to correct the Orders in line with the Human Rights of the Mother and Children.
(As per original)
The mother, in her submissions at paragraphs 11 and 12 asserts that I “facilitated a child kidnap”, referring to a “similar” case I was the trial Judge in (and the former ICL Mr Carter was the ICL). The decision the mother refers to, for the record, is published under the pseudonym Pitman & Hynes and Anor(No. 2) [2018] FamCA 1015 and also Pitman & Hynes and Anor [2018] FamCA 760 and it is far from apparent how the mother identified the parties’ names. Be that as it may – her allegation I am involved as part of a “fraudulent team” and am “attempting” in this case “a full judicial kidnap via the Queensland Children’s Court” is without any foundation.
The mother’s written submissions, which I have read, were in response to the written submissions of the father, which I also have read. Her submissions are interspersed with allegations directed to my conduct as a Judge, but also the Court generally (which from earlier submissions extends to Court administrative staff), Legal Aid Queensland, the ICLs, the solicitors for the father and Counsel who has appeared for the father, Mr McGregor, asserting fraud, corruption and the like. The same allegations have been dealt with in the two separate applications by the mother that I recuse myself. They have both been dismissed (see Newett & Newett [2021] FamCA 82 and Newett & Newett (No. 5) [2021] FamCA 383). I am aware the mother has at least appealed the Order made on 25 February 2021 dismissing her first application for recusal.
It is readily apparent that substantial judicial and Court time has been devoted to a number of interlocutory applications in these proceedings. Hopefully, the Orders today will provide a clear path to the listed final parenting hearing which is less than three months away. It is important that the evidence the mother asserts against the father and the father asserts against the mother is tested at a trial. I return to the difficulties that a pending trial will need to confront in these Reasons, however it is not likely (on current available judicial resources) if the trial does not proceed in September 2021, that it would be heard this year. The consequences of an adjournment would be obvious to both parents and detrimental to the best interests of the children, and is less than ideal.
Before dealing succinctly with the matters remaining for determination, I must record the Court’s concern that whilst the mother continues to file Applications in a Case raising some new issues, but often seeking to agitate issues previously dealt with, the father is forced to respond. I accept the mother says he has the financial capacity (superior to her current alleged positon) to engage lawyers. He is incurring fees and expenses. The Court has not been asked to make an order restricting the mother, without prior leave, from bringing fresh applications before the trial, and the Court is not initiating any such restraint.
However, the Court has limited availability before the final hearing to hear further applications unless they are based on some fresh evidence of a clear nature. It is best, if for example the mother raises new issues about the father’s parenting, to incorporate those concerns in her trial affidavit due to be filed by 30 August 2021.
APPLICATION TO DISCHARGE THE ICL MR KINGSTON
Counsel for the ICL properly identified the longstanding principles enunciated by Holden CJ in Lloyd & Lloyd & Child Representative (2000) FLC 93-045 where at [11] the Court said:
11.Without attempting to be exhaustive, there are certain circumstances, which in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i)if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii)if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii)if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv)if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
Furthermore, his Honour observed:
5.[t]here are a number of reasons why the Court should be slow to discharge a child representative on the basis of the largely unsubstantiated complaints of one of the parties. These include:
(i)the best interests of the children have to be bore in mind;
(ii)the Court should treat allegations of lack of impartiality with caution;
(iii)the public policy consideration of cost and any new separate representative having to spend a lot of time acquiring the necessary knowledge of the long proceedings.
As Mr Taylor, Counsel for the ICL, says, there is no evidence which founds the circumstances set out above, and submits, at its highest, the mother asserts:
(a)Mr Kingston’s request for the parties to have a psychiatric examination by Dr AW, subject to funding, was not a proper suggestion. The mother, in any event, has indicated she will not undertake a further examination and relies upon her treating health professionals.
(b)The mother contends that the suggestion of Dr AW by the ICL manifests an intention to secure evidence from a wholly discredited expert psychiatrist who, as I understand the mother’s oral submissions, is the preferred expert of the “Men’s Rights” movement. This the mother submits reveals bias by the ICL;
(c)The mother, having somehow accessed what she says are exchanges on social media by the ICL with Mr Alexander of Counsel in particular and various other unidentified persons, contends that they reveal an attitude or thinking of the ICL as to use of alcohol, drugs and “misogynistic comments regarding women and denigration of his wife…”. Mr Taylor submits that Mr Kingston is a solicitor of many years practising in family law and, as a result, has friendships with other solicitors and Counsel (including Mr Alexander). Mr Taylor submits the private utterances should be seen in context as many are “jocular”; are over a period since 2012 and none are associated or identified since he was appointed ICL in this case.
The father says the application to discharge Mr Kingston should be dismissed.
I agree that none of the circumstances identified in the evidence in this case fall within the non-exhaustive criteria offered in Lloyd. Furthermore, the mother points to no evidence other than the identification of Dr AW as an expert, of conduct in this case by the ICL that calls for his discharge.
It seems unlikely Dr AW will do an assessment of either party. The mother says she is entitled to say who will be the expert – apparently funded by Legal Aid Queensland or the father. She refuses to undertake any further examination. The mere fact the mother, relying on some media reports, says Dr AW is in some ways biased, does not make it true. However it is clear he will not be a witness in this case.
The mother’s character assassination directed to the ICL is not worthy of further comment other than to say that it is not the role of the Court to examine any personal views of legal representatives – unless there is evidence that strong personal views create a conflict of interest or prevent professional objectively being maintained. Even in the maternal grandmother’s application, the ICL had, on his own initiation, explored the possibility of supervised time taking place at a contract centre in City EE. The proposition, not acceptable to the maternal grandmother, at least indicates the ICL was looking at a safe option for the children to spend time with the maternal family.
The earlier withdrawal of Mr Carter as ICL was in entirely different circumstances (see Newett & Newett and Anor (No. 5) [2020] FamCA 1023). Turning to other parenting issues next, I believe it is in the interests of the children for a final hearing to take place in September 2021 as listed. Mr Kingston is suitably qualified and engaged to act as ICL so as to anticipate and prepare for the trial proceeding, when a further new solicitor appointed in this matter (if any are available), with so much material at this time to peruse would inevitably require the trial to be adjourned again.
For these reasons, the mother’s application to discharge Mr Kingston as ICL is dismissed.
SECTION 79A APPLICATION
The mother, in her Application in a Case filed 3 June 2021, pleads that the final property Orders made 20 May 2021 be set aside (paragraph 3). Paragraphs 4 to 14 of the said Application in a Case seeks relief once the Orders are set aside.
The wife contends that the s 79A application can run concurrently with her Appeal against the final property Orders. The wife informed the Court that she intends to prosecute the Appeal, as she is perfectly entitled to do.
In my assessment, the wife’s current application has been wrongly initiated. There are no pending property proceedings before this Court at trial level. It is not appropriate to use the ongoing parenting applications as a vehicle for fresh property proceedings. They must be commenced as an Initiating Application. On this basis alone the wife’s application could be dismissed.
However, rather than doing that, I propose to adjourn the Application filed 3 June 2021 until a date to be fixed AFTER the determination of the Appeal by the wife against the final property Orders made 20 May 2021. The husband should not be required to engage in that application until the Appeal is determined – for the simple reason that if the wife is successful in any of her numerous Appeals, resulting in an order by the Full Court that the property Orders be set aside and the matter be remitted for rehearing before a different Judge, the wife’s s 79A application would have no utility.
WIFE’S STAY APPLICATION
Paragraph 12 of the wife’s Application in a Case filed 3 June 2021 seeks the following orders:
12.That in the alternative that an immediate Stay of Orders to the Final orders made 20 May 2021, pending Appeal; and a quia timet Injunction be immediately applied to prevent the sale, transfer or encumbrance of R Street Suburb C.
(As per original)
The husband’s written submissions at paragraph 71 set out the relevant principles applicable to the determination of a stay application (see Trahn & Long (No. 2) [2008] FamCAFC 194 and Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106) and then at paragraphs 72 to 77 sets out why they say the wife’s stay application should be dismissed.
Whilst the grounds set out in the Notice of Appeal lack some clarity and certainly contain some serious allegations against me of fraud and other criminal acts, it may be that the Full Court permits the wife to redraw her Notice of Appeal in areas such as those asserted at grounds three (judgment in excess of jurisdiction); four (failure to exercise jurisdiction and was not impartial); five (apprehended bias) and six (actual bias), which I accept were not raised by the wife during the proceedings in this manner principally because she chose to leave the Court. I am prepared to say she should be entitled to pursue her Appeal rights. It is very difficult for the primary Judge to objectively assess grounds of Appeal and I choose not to do so.
The principle however that persuades me to make an order staying Order 1 made 20 May 2021, is that, pending the Appeal being determined, neither party should receive their share of any net proceeds of sale because, unless stayed, both parties could access the funds and thereby:
(a)in the wife’s position, if successful in the Appeal and a future retrial, be unable to obtain what she claims to be her rightful share of the nett proceeds; and
(b)in the husband’s case, where his application for costs against the wife remains to be determined (and further noting the wife, although generally unrepresented, now may seek reimbursement of legal costs she has incurred), the husband would not have any funds in the wife’s control to meet any potential costs liability.
The wife’s submissions continue to ignore the fact that the bank, exercising its rights under its registered security, on or about 4 May 2021 entered into possession of the property as the mortgage was in default. The Court made no order, for reasons previously given, to restrain the bank who was never a party to the property proceedings. As the husband was, at all times, the sole registered proprietor, I infer the wife had no standing to challenge the bank’s actions under the mortgage in a State Court.
The Court is permitted to make a stay order on conditions. The condition is set out in the terms of the Order at the commencement of these Reasons.
Neither party seeks I stay Order 3 (the superannuation splitting order).
The wife orally asked the Court to stay Order 9(a) so far as it relates to the husband’s continued possession of what the wife claims to be “her car”. I do not propose to stay the Order which in effect merely provides that the husband is entitled to retain possession of the car to the exclusion of the wife. That can possibly be a matter the wife agitates on Appeal – noting the Court at paragraph 43(b) of the property Reasons (Newett & Newett (No. 3) [2021] FamCA 187) gave detailed reasons why none of the vehicles were brought into account.
REMAINING APPLICATIONS
To the extent that some of the applications arising from the various Applications in a Case have been dealt with in these Reasons or in the most recent Reasons dismissing the mother’s application for my recusal, I rely upon but do not repeat them now again. I make the following findings in respect of what I now believe are the remaining applications.
Second further amended Application filed 17 March 2021
All these applications have either been dealt with or have been overtaken by other events and Judgments save for, it seems to me, order 4 and order 16 which I now deal with.
The wife’s application that she be provided with $130,000 by way of Barro& Barro (unreported, Family Court of Australia, Strauss J, 15 September 1980) or Hogan & Hogan (1986) FLC 91-704 order clearly relates to the property proceedings on the pending s 79A application. The Court has dealt with the property matter, now under Appeal, and the mother’s stay application. I have no jurisdiction to deal with the Application in respect of those proceedings, having pronounced final Orders.
To the extent the wife may argue that I had jurisdiction when she filed her Application on 17 March 2021, when the property judgment was reserved, the application had no merits and would have been dismissed for the reasons and history identified. Simply stated, I was not satisfied the husband had the capacity to pay any funds to the wife.
If I am mistaken and the mother’s application for a legal costs contribution by the father relates to the pending parenting proceedings, based on the findings made in the property proceedings, I find the husband does not have the capacity to fund such a payment.
As the pool of property interests determined by me (which I understands the mother strenuously challenges) demonstrates, the only real liquid funds presently available is any nett proceeds from the mortgagee’s sale of the Suburb C home. Those nett proceeds cannot be distributed, now that a stay has been granted.
Furthermore, it is relevant to the exercise of my discretion that the mother has had access to a publicly funded non-means tested independent legal team under the cross-examination scheme, but has refused to follow the lawyers’ advice, which was a condition of the grant of aid by Legal Aid Queensland.
For these reasons, the wife’s application under paragraph 4 filed 17 March 2021 is dismissed.
I find that the wife’s application at order 16 that Mr Scott Richardson be restrained from “further conduct on, or exposure to” this case on behalf of the father is without merit for these brief reasons:
(a)A long line of authority makes it clear that a person should only be denied the right to engage their legal representation of choice where a ground to restrain them exists (see Antony & Joyce [2020] FamCA 150). The following principles were set out in Antony & Joyce:
4. In Osferatu (supra) at [20], the Full Court said:
“There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt (2005) 64 NSWLR 561).”
5.In Kallinicos v Hunt (supra) Brereton J summarised the relevant principles at [76]:
…
However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice...
The test to be applied in this inherent jurisdiction is whether a fairminded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
…
6. …
7. …
8.I accept that the authorities adopted and summarised in McMillan & McMillan (2000) FLC 93-048 require the husband in this case to:
“…give evidence that he has provided confidential information to the solicitor… The client does not have to divulge the content of that information.” At [87].
9.When considering how appropriate weight must be given “to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause (see Billington & Billington (No. 2) [2008] FamCA 409, this must be balanced against the competing interests of the client which were described by Lord Millett in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at [236] as follows:
“It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.”
10.When considering Lord Millett’s judgment, Goldberg J in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905 at [50] – [51] said inter alia:
“50. It is apparent from Lord Millett’s judgment that there are three stages which need to be considered:
·whether the firm is in possession of information which is confidential to the former client;
·whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
·whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
51. The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied.”
11. Again at [35] in Osferatu (supra) the Court said:
“A balancing of the nature of the information against a consideration of the person to whom the information was given, when the information was given, the relevance of that information to the current proceedings, the risk of disclosure and any proposed protective measures is required before any determination can be made as to whether any relief is required and, if so, what is the appropriate relief.”
(b)The “ground” relied upon by the wife is that “prima facie evidence exists before Court” of “his criminal actions against the mother” and further “the current proceedings on foot before the Magistrates Court”. Although I accept that the mother commenced proceedings by way of private criminal prosecution against Mr Richardson, I have no evidence that a “prima facie” finding has been made by a Magistrate in those proceedings. I actually have no evidence at all of the current status of those proceedings. The mere filing of a complaint is not sufficient in these circumstances. I expect the mother, during the parenting trial, might be seeking some finding against the father’s solicitor, but I have made no finding against Mr Richardson to date. Furthermore, to the extent the mother asserts orally that the Application for Contempt she has brought against Mr Richardson (to be heard by Howard J) is “prima facie” evidence of some criminal or quasi-criminal conduct, it is not. If a Judge makes a finding in those contempt proceedings against the solicitor for the father then the solicitor for the father may be required to consider his position.
Until any such finding is made, no basis for restraining Mr Scott Richardson exists.
APPLICATION IN A CASE FILED 29 MARCH 2021
Order 1 – the mother sought a variation to Order 25(e), 25(f) and 27 made 19 March 2021 relating to facetime calls in the following ways:
(a)“be relocated to the P Contact Centre, at the full cost of the Father”;
(b)Sought a change of time to the calls for between 6.00pm to 6.30pm (as ordered) to 6.30pm (Wednesday) and 5.30pm (Sunday) and 5.30pm (Saturday);
(c)“an [sic] if the Father should breach these Orders, the Children are to return to living with the Mother immediately.”
The father’s response to this application is that despite some early problems, time is now proceeding on the times ordered. I am prepared to accept this current time suits the children and they are now used to it. I am not satisfied it is in their best interests to alter the times as the mother proposes. Furthermore, the children receive the calls at their residence. There is no basis to vary the Order requiring the father to take the children three times a week to P Contact Centre to receive the calls. I accept the mother asserts concerns about comments she says the children tell her on the calls. The father submits the mother’s recent evidence reveals, contrary to Order 25(e), that she is recording calls. It may have been the mother’s intention to seek to have her telephone calls in the presence of an independent supervisor so that the supervisor can note what the children say to the mother.
That will be a matter for trial. I also anticipate it may be an issue raised with the Family Consultant during the report interviews. As a result, I dismiss order 1 sought by the mother.
Orders 2 to 9 – have previously been dealt with and should be dismissed.
Orders 10 and 11 – the father submits, my Reasons delivered 19 March 2021 dismissed a similar application (see paragraph 50(m)). There is no new evidence that supports consideration of, in essence, the same application as was determined 10 days earlier. It is arguable that the mother’s application is an abuse of the process, but where no such submission was agitated formally, I do not make the finding.
However, it seems abundantly clear that the mother’s application, yet again, to transfer the proceedings to Sydney should be seen in the context of order 11 sought by her, namely:
I seek an [sic] s102NA Certificate for application by NSW Legal Aid/Women’s Legal Service.
As my Reasons delivered 30 November 2020 record, the mother had lost the right to funding through Legal Aid Queensland because of her failure to comply with the condition she follow advice. The mother is well aware of the consequences that flow from her not having legal representation (inability to personally cross-examine the father).
I am not aware whether New South Wales Legal Aid would accept an application under the same Commonwealth Scheme they administer, now that the mother has elected to live in New South Wales. The case remains in Queensland. The mother can bring to the attention of New South Wales Legal Aid the Order made by me under s 102NA (which has mandatory application because of the five year Domestic Violence Order in place naming the mother as the Respondent). I do not propose to make a further order, although if New South Wales Legal Aid is prepared to fund the mother’s representation in Queensland, that would only be supported by the Court.
Accordingly, orders 10 and 11 are dismissed.
AMENDED APPLICATION IN A CASE FILED 9 APRIL 2021
I have dealt with the application to “remove” the ICL. There is no utility in joining VV Pty Ltd as a party as the property proceedings are complete and there is no basis to join the company in the parenting case.
At order 4, the mother seeks the children “undergo an urgent follow-up Family Report by Ms HH”, and goes further to seek the Family Consultant be furnished with the documentation provided by the mother for her Appeals; all affidavits and to consider “the content of the Judicial Review documents filed in Supreme Court for overturning the current Domestic Violence Orders”.
I am at a loss to understand the mother’s Application (originally filed 31 March 2021 but amended on 9 April 2021) concerning Ms HH when, on 19 March 2021 at Orders 15 to 24, I ordered an updated report and further at Notation A requested if possible that Ms HH prepare the report.
As to the ancillary documents the mother seeks the Court to order Ms HH view, I refuse to so order for these reasons:
(a)Order 20 gives leave to the Family Consultant to inspect subpoena documents produced to the Court;
(b)The Family Consultant has access to the file which includes affidavits and Reasons for Judgment;
(c)The amount of material filed in this Court since the first family report dated 7 August 202 and published 13 August 2020 is so voluminous and, at times, repetitive, that it would be onerous and oppressive to expect a Family Consultant to read the lot. In accordance with the usual practice, the Family Consultant will clearly identify what she has read;
(d)The mother’s “Judicial Review” application to the Supreme Court is attached to the mother’s submissions filed 9 April 2021. There is no evidence of its status or if it has been accepted for filing by the Supreme Court. It is a critique of the Appeal Judgment of the District Court Judge, that dismissed the mother’s appeal against Orders made by the Magistrate on 5 December 2019 granting the father’s application for a Domestic Violence Order but refusing the mother’s application. It could not assist the Family Consultant any more than viewing Appeals of applications in Appeals filed by the mother.
(e)A Family Consultant is not the person who ultimately determines facts – that is the role of the Judge. The Family Consultant is not applying legal skills or interpreting the law. The Family Consultant’s role is to apply their skills, professional training and experience through a process of interviewing parties and particularly children (including observations), and providing any opinions or recommendations. I have no doubt in this difficult matter that the Family Consultant who is allocated the task of complying with my Order to prepare an updated report will do their duty according to law.
CONCLUSION
I make the Orders which appear at the commencement of these Reasons.
I reserve the costs of the parties to the trial.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 June 2021
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