Paulsen & Paulsen
[2024] FedCFamC2F 1193
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paulsen & Paulsen [2024] FedCFamC2F 1193
File number(s): CAC 1710 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 29 August 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Interlocutory application for an adjournment part way through a final hearing – Sudden unavailability of counsel – Consideration of legal representation pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme – Where any confusion about legal representation is an unsatisfactory state of affairs that is a menace to procedural fairness. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 69ZN, 102NA(1)(c)(i), 102NA(2) Cases cited: Cheung v R (1999) ALJR 1093
Kioa v West (1985) 159 CLR 550
Division: Division 2 Family Law Number of paragraphs: 46 Date of last submission/s: 29 August 2024 Date of hearing: 29 August 2024 Place: Canberra Solicitor for the Applicant: Brightstone Legal Pty Ltd Counsel for the Respondent: Mr Bateman Solicitor for the Respondent: Baldock Stacy & Niven Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 1710 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PAULSEN
Applicant
AND: MS PAULSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.The final hearing of this matter is adjourned part-heard with an estimate of 2 days commencing 12 September 2024 at 10.00am in CITY B.
2.By 4.00pm on 30 August 2024, the applicant is to advise the respondent and the Independent Children’s Lawyer which audio and/or video recordings, referable to the affidavit of the father, are sought to be adduced as evidence in the proceedings.
3.By 4.00pm on 3 September 2024, the respondent and the Independent Children’s Lawyer are to advise the applicant which of the audio and/or video recordings are objected to.
4.By 4.00pm on 4 September 2024, the applicant is to advise the Court which audio and/or video recordings, referable to the affidavit of the father, are sought to be adduced without objection and which paragraphs are objected to.
5.A transcript of the oral evidence of the father is to be obtained by the Court and a copy provided to the parties NOTING THAT the transcript is not to be provided to the single expert witness unless and until further Order of the Court.
6.Leave is granted to the parties to attend by video-link for the oral examination of the single expert witness and closing submissions.
7.The parties and the Independent Children’s Lawyer are at liberty to make an application with respect to costs with such application to be returnable on 12 September 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD:
These are ex-tempore reasons for orders made on 29 August 2024.
There is one child of the relationship who is 10 years old. Pursuant to interim orders she lives with the father and spends alternate weekends and half of her school holidays with the mother who lives three hours’ drive away. The mother seeks a change of residence and reversal of the arrangements. Each parent seeks sole responsibility for making major long-term decisions. There are extensive allegations of family violence perpetrated by each parent towards the other. There is nil co-parenting. There are significant issues of risk to the child due to the alleged behaviors of the father and the mother in this case. In the meantime, the child is not doing well and presenting with learning and behavioral difficulties.
The applicant father commenced proceedings on 7 September 2022. He was legally represented. His original lawyers ceased to act for him by notice on 9 June 2023.
The mother became represented on 13 October 2022 and her original lawyers ceased to act for her on 5 April 2023. The mother’s present lawyers came on the record by Notice of Address for Service filed on 28 April 2023 and have continued to act for her since.
On 14 August 2023, for the first time the matter was listed for final hearing commencing on 27 September 2023.
The mother has been convicted of an offence involving violence to the father. Pursuant to s 102NA(1)(c)(i) of the Family Law Act 1975, the provisions of s 102NA(2) applied to the effect that the father must not cross-examine the mother personally and cross-examination must be conducted by a legal practitioner acting on behalf of the father.
The father’s current solicitor Mr Zhao came on the record by Notice of Address for Service filed on 12 September 2023. The father and his lawyer represented that the father’s representation was by way of a grant pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”).
On 26 September 2023, by consent, interim orders were made and the final hearing was vacated.
On 25 March 2024, the matter was listed for final hearing to commence on Monday 26 August 2024 with an estimate of four days.
There were several interlocutory proceedings in which the father represented himself on his understanding that the allocation of legal representation was for the final hearing only.
On Monday 26 August 2024, the matter came before me for final hearing.
Mr Masters of Counsel was at the bar table on behalf of the father. The wife was represented by Counsel who was instructed by her lawyers. The Independent Children’s Lawyer appeared as solicitor advocate.
Day one was spent by the parties responding to orders made by me prior to 9:00am that day, with respect to trial management.
On day two, at the conclusion of the preliminary matters, Mr Masters made it clear that he had facilitated the father complying with the orders made on day one, but he had not read the material in this case and his position was that he was not on record as appearing for and on behalf of the father. He represented that his brief was limited only to cross-examining the mother. He intended to leave the hearing for the applicant father’s case and return when called for cross-examination of the respondent mother which was probably going to be the next day.
I formed the view that the father was either represented or he was not. If he was represented, then his legal representatives were bound to abide by all of the applicable professional duties and obligations. They could not be met by not having read the material, dropping in and out of the hearing and acting as a mere mouthpiece for the father’s solicitor or for the father. Mr Masters indicated his brief was not consistent with that and sought leave to cease to act which was granted.
Mr Zhao then sought an adjournment of the hearing in order to obtain counsel, or in the alternative, that he too be granted leave to cease to act for the husband.
At this point, questions abound, including:
(a)What did the father’s grant of representation pursuant to the Scheme encompass?
(b)What, if any, were Mr Zhao’s limitations by virtue of acting for the father pursuant to the Scheme?
(c)Are such limitations express or implied?
(d)How could it be appropriate that a solicitor or barrister give or accept instructions that are obviously inconsistent with the professional rules.[1]
[1] Legal Profession (Barristers) Rules – 18. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgements called for during the case independently, after appropriate consideration of the client's and the instructing solicitor's desires where practicable.
Nevertheless, for the purposes of the application at the time, the issue for determination was what was the father’s understanding of the representation that he was to receive. Was it, for example, that he was fully aware that his legal representation was strictly limited to the lawyer or counsel putting to the mother in cross-examination the questions he fed them. In which case, there would be no procedural fairness issues for the father. If however, it was his understanding that his legal representation was more than that then, in my view, there were procedural fairness issues for him because of the manner in which his representation had been managed so far.
The father gave oral evidence that he was of the understanding that the grant pursuant to the Scheme meant that:
(a)He would still have to handle the matters that were not in relation to the final hearing; and
(b)He would still have to prepare his material; and
(c)He was to have a barrister and legal team at final hearing; and
(d)The material would be provided to them and they would run with it.
Under cross-examination, he said that:
(a)He wanted the proceedings resolved; and
(b)He did not ask Brightstone Legal [Mr Zhao’s firm] to withdraw.
On that basis, Mr Zhao’s application for an adjournment was refused and leave was not granted for Mr Zhao to cease to act. The hearing commenced with presentation of the applicant father’s case and soon moved to cross-examination of him by counsel for the mother.
Later that day, Mr Zhao indicated that he was still seeking to retain Mr Masters for cross‑examination of the mother. I expressed my view that procedural fairness issues about the father’s representation pursuant to the Scheme had been resolved and whatever the father and his solicitors sought to do about representation was a matter for them and would be dealt with on an application by application basis.
For the balance of day two and all of day three, the father was cross-examined by counsel for the mother for a total of four and three quarter hours and by the Independent Children’s Lawyer for a total of two and one quarter hours. In total he was cross-examined for seven hours.
After lunch on day three, Mr Masters reappeared to confirm that he intended to accept instructions from Mr Zhao to cross examine the mother on day four and I gave him the same response that I gave to Mr Zhao.
On the evening of day three, by email to the court and the parties, Mr Masters advised that his wife had a medical emergency and he would not be attending court.
At the commencement of day four, Mr Zhao re-examined the father in order for his oral evidence to be completed. Thereafter, on behalf of the father, Mr Zhao made an oral application to adjourn the final hearing in order for Mr Masters to attend later or for him to obtain alternative counsel. The application was opposed by the mother and the Independent Children’s Lawyer.
That application was granted. I considered and determined the application against the following three principles.
FIRSTLY – THE OVERARCHING PURPOSE
The overarching purpose is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. Referable to the overarching purpose, the Courts have attached increasing importance to case management issues such as the impact of the adjournment on court resources, lists and time, and the rights of other litigants.
The father’s application is not made because the trial cannot proceed according to law. Self evidently, it would be faster, less expensive and more efficient to proceed with the trial forthwith. This weighs in the mother’s favor.
SECONDLY – PROCEDURAL FAIRNESS
Per Kirby J in the matter of Cheung v R (1999) ALJR 1093 - The fundamental consideration is to do justice between the parties. The court has a wide discretion. It should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to the other party which cannot be compensated for by way of costs including, if necessary, security for costs. But the fundamental consideration is to do justice between the parties.
Also, the High Court in Kioa v West (1985) 159 CLR 550 at 582 said procedural fairness requires each party to be given an adequate opportunity to be heard and to present their cases.
As to the reason for the adjournment, it is because of the sudden unavailability of counsel. I hear the submissions for the mother that counsel is still available by way of Mr Zhao who has been relatively long-standing in the matter, and Mr Masters has practically not been available in any event. Also, that the father still has what his eyes have been open to ever since Mr Zhao’s appointment which is representation pursuant to the Scheme and he is not prejudiced.
The relevant circumstances are:
(a)The mandatory ban on the father cross-examining the mother personally is in effect by virtue of the mother being convicted of an offence involving violence to the father. It would be an inherently unjust operation of the provision to have the effect of inhibiting cross-examination of the mother at final hearing.
(b)There are significant allegations of family violence perpetrated by each parent towards the other. There are significant issues of risk to the child due to the alleged behaviors of the father and the mother in this case.
(c)Counsel for the mother was fully briefed and had an unhindered preparation. The father was under cross-examination by him for four and three quarter hours. The mother’s evidence in chief is voluminous. Both parties were directed on day one to revisit their evidence in order to identify and focus on the real issues. These are indicators as to the extent of cross-examination required in this case.
(d)Whatever the circumstances of engagement, it is clear that both the father and Mr Zhou reasonably expected and anticipated that Mr Zhou would not be cross-examining the mother at final hearing and he would have had less than a day’s notice otherwise.
(e)The circumstances in which counsel became unavailable had nothing to do with them.
On any objective view, the father is prejudiced by these circumstances in that they compromise the effectiveness of any cross-examination of the mother to a significant extent.
As to the period of delay in the application, there was effectively none between the time when counsel became unavailable on the evening of 28 August 2024 and the application on 29 August 2024.
If the adjournment is granted there is no prejudice or disadvantage to the mother or the ICL being heard or in the presentation of their cases. I accept that they are prejudiced by the incurrence of costs but they are not precluded from seeking compensation for that and any such application is a matter form them which would then be duly determined.
On the other hand, if the adjournment were not granted, there is prejudice and disadvantage to the father, and, his opportunity to be heard (which includes testing of the mother’s evidence by cross-examination) is less than adequate.
THIRDLY – THE BEST INTERESTS OF THE CHILD
I have had regard to the principles at s 69ZN of the Family Law Act 1975 to which I must give effect. Application of principles 1 and 5 weigh in favour of not granting the adjournment. Principle 3 weighs in favour of the adjournment in the same manner as consideration of the factors in s 60CC(2) and s 60CC(2A).
Section 60CA of the Act says that in deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration.
I have no trouble finding that it is in the child’s interests to obtain the certainty that the end to these proceedings is likely to bring. However, these proceedings themselves are not the primary risk of harm to the child and the ending of them is not the primary objective.
What is in the child’s best interests is for final orders to be arrived at that have had the benefit of being informed by the best evidence that is available. Forcing the matter on with the effect of the father’s solicitor cross-examining the mother, or, the mother not being cross-examined at all if the solicitor were to cease to act, would not provide for the best available evidence to be adduced.
Indeed, it is essential that this occurs in this case in order to determine the issues of risk and safety pursuant to s 60CC(2) and (2A) and arriving at final orders that are in the best interests of the child.
REPRESENTATION PURSUANT TO THE SCHEME
Ultimately, the proceedings were adjourned because of the sudden unavailability of counsel for the father irrespective of the circumstances in which he was engaged.
Prior to the present application, the proceedings were delayed by half of one day out of a four day matter due to confusion about representation arising from the father’s end of the bar table. That did not appear to me to be something referable to the father. I could be wrong and determination would require further evidence about the facts of those matters which was not appropriate or called for in these proceedings so far. Rather, it appeared to be referable to an unsatisfactory state of affairs around what it means to have representation pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
A party is represented or they are not. If they are represented, the legal representatives are bound by the rules referable to their status as solicitors or barristers. There is not a separate class of representation referable to what is commonly referred to as “a 102NA grant.” If any legal representative is of the view that there is some other form of representation, then that ought to be raised and argued before the Court well before the commencement of final hearing. Proposed directions will likely be required to ensure that the effected party is afforded procedural fairness in circumstances where anything less than representation pursuant to the professional rules is contemplated.
Further, any party that is a recipient of the grant ought to be left in no doubt whatsoever as to the extent of the grant. Confusion about a party’s private representation that is attributable to their own folly is their own responsibility. However, confusion about representation pursuant to the Scheme is an unsatisfactory state of affairs that is a menace to procedural fairness and the efficient administration of justice. Arguments about representation at final hearing wastes valuable court time and is contrary to the purposes of the Scheme which seeks to protect against perpetuation of argument and prolonged proceedings.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Mansfield. Associate:
Dated: 29 August 2024
1
1