NEWSOME & NEWSOME

[2020] FamCA 416

FAMILY COURT OF AUSTRALIA

NEWSOME & NEWSOME [2020] FamCA 416

FAMILY LAW – PRACTICE AND PROCEDURE – Abandonment of Trial – Procedural Fairness – Where the father, on the third day of a five day final parenting hearing, made an application for the abandonment of the trial on the basis that the trial judge had inadvertently had regard to extraneous material that was not sought to be relied upon and could not be relied upon by the parties or the independent children’s lawyer, and due to that, injustice would be done to him if the trial continued under the circumstances – Where the material was a report prepared by a person who has since had her registration as a psychologist cancelled and as such it was impossible to rely upon the report as expert evidence, or to cross-examine her about the contents of the report – Where the mother and the independent children’s lawyer support the application for abandonment – Where it is accepted that justice could not be seen to be done if the trial continued – Where the trial is abandoned.

Evidence Act 1995 (Cth) s 144

Bain & Bain (2017) 56 Fam LR 361
Lamereaux & Noirnot (2008) FLC 93-364

Maluka & Maluka (2011) FLC 93-464

APPLICANT: Mr Newsome

RESPONDENT: Ms Newsome

INDEPENDENT CHILDREN’S LAWYER: Anthony Kingston

FILE NUMBER: BRC 10617 of 2012

DATE DELIVERED: 27 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Munro Legal

COUNSEL FOR THE RESPONDENT: Mr Selfridge

SOLICITOR FOR THE RESPONDENT: Briese Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston
Norman & Kingston

Orders

1. That the hearing of the trial in this matter be abandoned and the matter be returned to the Trial List to await allocation of a Trial Judge and Trial dates on a date to be fixed and advised by the Court.

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 Newsome & Newsome 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 10617 of 2012

Mr Newsome

Applicant

And

Ms Newsome

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Earlier this morning, on the oral application of the Applicant father, I ordered the abandonment of the trial in this matter at the commencement of the third day and the return of the matter to the pool of matters waiting to be taken into a Judge’s docket so that it may be heard by a different Trial Judge in due course.

2. At the time I made that Order, I said that I would publish short reasons for the Order a little later. These are those reasons.

Matters of Relevant History

1. The matter was listed for a Trial Management hearing before me on 12 December 2019. On that day, I listed the matter for a five day trial before me commencing on Monday, 25 May 2020. The Orders I made that day referenced the fact that the Independent Children’s Lawyer (“the ICL”) was obtaining a family report from a psychologist, Ms B. Attached to the Orders of that date was a Trial Plan that listed Ms B as the ICL’s witness. The Orders of that day also required the parties to file a Case Outline document no later than 7 days prior to the commencement of the trial containing, relevantly, a list of all affidavits they rely upon.

2. I was on leave all of the week of 18 to 22 May 2020.

3. The Respondent mother’s Case Outline was filed on 19 May 2020.

4. Consistent with the arrangements in my chambers that have been in place most particularly since the commencement of the restricted arrangements for hearing trials via the Microsoft Teams internet platform, my Legal Associate provided me with a written summary of the matter by email sent to me during the morning of Friday, 22 May 2020. My Legal Associate informed me that she had “saved the material for next week’s trial” in an electronic folder that I could electronically access in my preparation for the commencement of the hearing, but she pointed out to me that she was “still waiting” on the Applicant father and the ICL to file their Case Outline documents. Accordingly, my Legal Associate had saved affidavits to the file that she assumed those parties would rely upon at the trial.

5. The Applicant father’s Case Outline document was filed later on the afternoon of 22 May 2020.

6. My Legal Associate had saved to the electronic folder that I accessed in preparation for the trial two affidavits that she had extracted from the file that she considered the ICL would be relying upon in the absence of the ICL’s Case Outline document. One was an affidavit of Ms B, attaching the most recently prepared family report. The other was an affidavit of Ms D filed 12 December 2018. Ms D’s affidavit attached a family report she had prepared, as a psychologist, in late 2018. 

7. The ICL’s Case Outline document was not filed until the morning of 25 May 2020, just before the commencement of the trial. It did not list the affidavit of Ms D as evidence to be relied upon as part of the ICL’s case.

8. The Applicant father gave evidence over the first two days of the trial. On the afternoon of Tuesday, 26 May 2020, the second day of the trial, when the father was being cross-examined by counsel for the ICL about a particular matter, I informed the parties that I had read the family report of Ms D in my preparation for the trial, acknowledged that the Case Outline of the ICL did not list it as evidence relied upon by the ICL and asked the father some questions arising from my reading of that report. No objection was made to my asking the father those questions at the time. Soon thereafter, the matter was adjourned at the end of the day.

9. At the re-commencement of the hearing this morning, counsel for the Applicant father made the oral application for the trial to be abandoned. After ascertaining that both the other counsel had been given notice that the application was going to be made and were prepared to deal with it I proceeded to hear counsel’s submissions.

10. Essentially, counsel submitted that by reading the report of Ms D that was not relied upon by the ICL as evidence in the trial (or any of the parties, for that matter) I had inadvertently fallen into error. The error was constituted by my clearly having regard to extraneous material that was not relied upon and could not be relied upon by any of the parties in the trial. Counsel submitted that she, as counsel representing the father, had not prepared for the trial on the basis that the report of Ms D would be in evidence or that it might come into evidence. Counsel submitted that injustice would be done to her client if the trial continued in these circumstances.

11. Counsel explained her submission that what had occurred was an error that could not now be cured. Counsel informed the Court of a matter of fact about which there was absolutely no dispute amongst the parties. Ms D’s registration as a psychologist had been cancelled and she was not currently permitted, as a matter of law, to practice as a psychologist. Accordingly, her report could not now be adduced into evidence part-way through the trial, even if that course was contemplated as a potential cure of the error, and she could not be made available to be cross-examined on the matters contained in her report. 

12. After counsel for the father concluded her submissions, I ascertained from counsel for the Respondent mother and counsel for the ICL that they both supported the abandonment application in the circumstances. Indeed, counsel for the ICL read and relied upon an affidavit of the ICL filed earlier this morning which attached a decision of the Queensland Civil and Administrative Tribunal in which Ms D’s registration was cancelled in late 2019 and she was disqualified from applying for registration for a period of two years.

13. Counsel for the ICL explained that was why Ms D had not been engaged to do an updated family report in preparation for the trial and the reason why her report had not been relied upon by the ICL as evidence in the trial. Significantly, counsel for the ICL did not argue that the error was able to be cured by adducing the report into evidence, albeit part-way through the trial, conceding that the cancellation of Ms D’s registration as a psychologist on the basis of unprofessional conduct that involved serious findings of dishonesty made it impossible to rely on her report as expert evidence, notwithstanding the practical issue of whether or not she could now be made available for cross-examination. 

Legal Principle

1. Though no submissions were made by counsel in respect of the relevance of s 144 of the Evidence Act 1995 (Cth) (“Evidence Act”) to the determination of this application (and counsel were not invited by me to make any), I consider some reference should be made to it in these reasons. Pursuant to that section, reliance is able to be placed by a judge on evidence other than evidence regularly adduced by the parties to the litigation. That section expressly provides:

   (1)Proof is not required about knowledge that is not reasonably open to question and is:

   (a)Common knowledge in the locality in which the proceeding is being held or generally; or

   (b)Capable of verification by reference to a document the authority of which cannot reasonably be questioned.

   (2)The judge may acquire knowledge of that kind in any way the judge thinks fit.

   (3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

   (4)The judge is to give a party such opportunity to make submissions and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

2. In Bain & Bain (2017) 56 Fam LR 361 at 388–393, [175]–[206], there was some discussion by the Full Court of this Court of the applicability of that section. That was in circumstances where a trial judge of this Court considered a document that had been filed in the Court in proceedings that had earlier been before her Honour when later determining contempt proceedings against one of the parties. Critically, that document had not been relied upon as evidence in the contempt proceedings by the Applicant or the Respondent. In that case, their Honours observed that the authorities her Honour had referred to as supporting her use of the document (written submissions as to costs) did not support “her Honour’s actions in examining the court file generally”. In any event, they went on to observe that s 144(4) of the Evidence Act had not been satisfied where her Honour had failed to make clear to the parties what use her Honour intended to make of the document and had not allowed them an opportunity to respond.

3. In other earlier decisions of the Full Court, even where it was considered that trial judges might have been able to rely on s 144 of the Evidence Act to consider evidence other than evidence regularly adduced by the parties to the litigation, the Court also stressed the significance of procedural fairness. See Lamereaux & Noirnot (2008) FLC 93-364 at pp 82,466-82,467 and Maluka & Maluka (2011) FLC 93-464 at pp 85,606 and 85,607.

My Decision to Abandon the Trial

1. Quite apart from consideration of whether or not my reading of Ms D’s family report would potentially otherwise fall within the saving provisions of s 144(1)–(3) of the Evidence Act (and I do not even begin to express the view that it would), the unwillingness of the ICL to even try to tender the report is completely understandable and reasonable in the circumstances. Short of that, even if I was to seek to somehow rely upon the provisions of s 144(1)–(3) of the Evidence Act,  procedural fairness simply cannot be provided to the parties as Ms D cannot properly be made available to be cross-examined by counsel for the father and counsel for the mother.

2. In those circumstances, given that the parties became aware that I had read the report and that I considered one part of it, in particular, to be extremely relevant, I readily accepted the unanimous position of the parties that justice could not be seen to be done if I continued with the trial. Thus, I made the order to abandon the trial.  

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 May 2020.

Associate:

Date:  27 May 2020