Peters and Richards

[2013] FamCA 605

FAMILY COURT OF AUSTRALIA

PETERS & RICHARDS [2013] FamCA 605

FAMILY LAW – CHILDREN – Application in a Case – Where Mother seeks orders to vacate earlier orders of the Court – Where Mother submits that her Counsel at previous hearing of the matter did not act on her instructions – Application allowed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Giannarelli v Wraith (1988) 165 CLR 543

APPLICANT: Ms Peters

RESPONDENT: Mr Richards

INDEPENDENT CHILDREN’S LAWYER: Boughton Legal

FILE NUMBER: BRC 11178 of 2009

DATE DELIVERED: 16 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 15 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch

SOLICITOR FOR THE APPLICANT: Butler McDermott Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fleming QC

SOLICITOR FOR THE RESPONDENT: Berck & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Freeman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boughton Legal

Orders

IT IS ORDERED THAT:

1. Orders (3) to (18) of the Order made on 22 May 2013 be discharged.

2. The matter be adjourned before the Honourable Justice Bell for further submissions at 10.00 am on 30 August 2013, at the Brisbane Registry of the Family Court of Australia.

IT IS FURTHER ORDERED THAT:

1. The prisoner, Mr Richards born … 1972, who is the Respondent Father in proceedings before this Court given leave to appear by telephone on 30 August 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Richards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11178 of 2009

Ms Peters

Applicant

And

Mr Richards

Respondent

REASONS FOR JUDGMENT

1. On 5 July 2013, Ms Peters (“the Applicant”) filed an Application in a Case seeking orders that the parenting Orders made by me on 22 May 2013 be vacated and that the matter be listed as a matter of urgency for a two day trial in this Court. On 11 July 2013, Mr Richards, (“the Respondent”) filed a Response to the Application in a Case seeking an order that the Application be dismissed and an order for costs.

2. This matter was set down for a two day trial with respect to parenting matters commencing 22 May 2013 to be heard by me. On what was to be the first day of the trial, it was agreed between Page SC (as he then was) for the Applicant and Fleming QC for the Respondent, that there was a “deficiency”[1] in the evidence before me, and that there ‘…ought to be something fresh in front of [me] in respect of the children.’[2] As such, it was submitted that it was necessary for the proceedings to be adjourned to enable further expert evidence to be put before the Court. As to the type of report, however, counsel for the Applicant and Respondent were not in agreement. 

   [1] P.6, Transcript, 22 May 2013.

   [2] P.6, Transcript, 22 May 2013.

3. On the Applicant’s case, as presented by Page SC, given that the Respondent was incarcerated at the date of the hearing (he having pleaded guilty to the attempted murder of the Applicant and their children) and that the Applicant sought to remain anonymous in the proceedings in order to protect the children, the Applicant sought that she not be interviewed with the Respondent as would occur in a Family Report; rather, the Applicant sought for there to be ‘…independent expert experts appointed (a) to assess the [Respondent] and to assess the [Applicant] and the children.’

4. The Respondent sought for there to be an expert report prepared. Following the evidence of Dr B, Fleming QC supported my suggestion for a Family Report to be prepared by Mr C ‘…with particular emphasis upon the welfare of the children and the mother…’

5. Following discussions between myself and counsel about how such a Family Report could be prepared without the incorporation of the Applicant’s address in the material necessary for Mr C’s preparation of the Family Report, Page SC supported the preparation of a Family Report.   

6. With regard to the Respondent, it was decided by counsel for the Applicant and the Respondent, with whom the Independent Children’s Lawyer agreed, that a psychological assessment would need to be prepared.

7. It was also agreed between counsel for the Applicant and the Respondent that the matter should not proceed until the finality of the Respondent’s parole hearing which was to be later on in the year.

8. Following submissions, counsel were to go ahead and prepare a draft order, which was done by them that same day.

9. Following the drafting of the orders by counsel, which, might I add, are not noted as being by consent on the order, the orders were made by me inter alia that:

   a)the matter not be listed for trial until after the finalisation of any application for parole by the Respondent;

   b)pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), a Family Report was to be prepared by Mr C. In respect of that Report, it was ordered that the Applicant and children were to attend the interviews separately from the Respondent;

   c)as regarded the Respondent’s attendance at the Family Report interviews, in light of the Respondent being incarcerated at the time of the hearing, it was requested that the Director-General, Queensland Corrective Services make the Respondent available for the purposes of the Family Report; and

   d)pursuant to the Orders, the Director General, Queensland Corrective Services, was requested to make the Respondent available to be interviewed by a psychologist for the purposes set out at Order 13.

10. As detailed above, on 5 July 2013 the Applicant filed an Application in a Case, supported by an affidavit filed on the same date, in which she seeks orders for the Order of 22 May 2013 to be vacated and the matter listed for a two day trial on an urgent basis.

11. It is the Applicant’s case that the submissions advanced by Page SC on 22 May 2013 were not pursuant to any instructions given by her. Indeed, following a conference between herself, her solicitors and Page SC held on the morning of what was to be the first day of trial, the Applicant states that she understood that Page SC would be resisting the preparation of a Family Report. As such, the first time the Applicant ‘…became aware such submissions were going to be advanced was at the bar table when Mr Page started making the submissions…’[3] Further, the Applicant notes that Page SC acknowledged to the Court that he was not making the submissions in question pursuant to the instructions given by the Applicant. Also, at paragraph 7 of the Applicant’s supporting affidavit, she states that ‘…Mr Page … consented to the trial being adjourned until after determination of the Respondent’s Parole hearing without my instructions or any discussion with me.’

    [3] Paragraph 8, page 3, Affidavit of the Applicant filed 5 July 2013.  

12. The Applicant outlines in her supporting affidavit that the issue with respect to the preparation of a Family Report had been dealt with twice before the hearing of 22 May 2013. Specifically, on 19 June 2012 Federal Magistrate Cassidy (as she then was), allowed the Applicant’s application that there not be a Family Report prepared and on 30 July 2012, Registrar Coutts dismissed an application filed by the Respondent for a Family Report to be prepared. The Applicant also emphasises that, following the decisions of Federal Magistrate Cassidy and Registrar Coutts, the matter had be set down for trial by earlier judicial minds, absent any requirement for a Family Report.

13. As detailed at paragraph 13 of her supporting affidavit, the Applicant concludes that it remains her position that ‘…it is not in the best interests of the children to participate in further interviews in relation to the incident of 3^rd November 2009.’

14. On 11 July 2013, the Respondent filed a Response to the Application in a Case seeking orders for the Application filed 5 July 2013 to be dismissed and that the Applicant or her solicitors pay the Respondent’s costs of and incidental to the Application.

15. On 15 July 2013 the Application in a Case was heard by me. Dr Brasch of counsel appeared for the Applicant, Fleming QC appeared for the Respondent and Freeman of counsel appeared for the Independent Children’s Lawyer.

16. At the outset of my determination, it is necessary to establish whether or not it is within my power to make an order to vacate the Order of 22 May 2013. As contended by counsel for the Respondent, the making of such an order is not within this Court’s jurisdiction as the Application before me is, in substance, an appeal.   

17. Dr Brasch submitted that such a vacation of Orders is permitted under the rules, and in the circumstances, is the appropriate course of action when compared with the other option, being an appeal. That is so, as submitted by Dr Brasch, because in the circumstances of this case, it is hard to see how a ground of appeal could be crafted, given that it appears that there was no error of law in that I was simply dealing with the submissions made before me by Counsel for the Applicant and Respondent, with whom the Independent Children’s Lawyer agreed.

18. Dr Brasch argued that, as rule 16.04 of the Family Law Rules 2004 (Cth) (“the Rules”) permits the Court to make an order for the preparation of a Family Report, pursuant to rule 1.11 such an order, being an order ‘made in the exercise of a power under [the] rules, may be set aside or varied by the Court.’ Though I accept that this is indeed correct insofar as the Orders of 22 May 2013 were made pursuant to the Rules, Order (8) of those orders was made pursuant to s 62G of the Act and not pursuant to the Rules. Notwithstanding rule 1.10 is sufficiently broad enough to allow for the variation of Orders, as Order (8) was made under the Act it is preferable to vary it pursuant to the Act.

19. The Order which the Applicant seeks is in this Application can be made pursuant to s 65D(2) of the Act which provides:

    ...without limiting the generality of subsection (1) and subject to subsection 61DA … and section 65AB … and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

20. A “parenting order” is defined in s 64B(1) of the Act as being:

    (a)an order under this Part [being Part VII] (including an order until further order) dealing with a matter mentioned in subsection (2); or

    (b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

21. Subsection (2)(i) of s 64B provides that ‘a parenting order may deal with … any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.’ As it is the case that the order for the preparation of a Family Report was made under Part VII of the Act, and relates to ‘… the care, welfare and development of a child who is under 18…’, as set out at subsection (1) of section 62G, an order for the preparation of a Family Report falls within the definition of a “parenting order” under the Act. As such, that parenting order is able to be discharged, varied, suspended or revived pursuant to section 65D.

22. It is therefore within the power of this Court to discharge the parenting orders in question.

23. Having established that is within the power of this Court to make the orders which the Applicant seeks, I turn then to the question of whether, in the circumstances, it is appropriate to make such orders.

24. Counsel for the Applicant crafts her argument around what she refers to as “the three submissions” which were made by Page SC of Counsel on 22 May 2013. Dr Brasch submits that none of these submissions was made pursuant to the instructions of the Applicant and indeed, the Applicant was not advised by Page SC that these submissions were going to be advanced from the bar table. The three submissions to which I refer are as follows:

    a)that there was a need to have the children (and parents) assessed;

    b)the lack of evidence as to the father’s state of mind; and 

    c)adjourning, and then adjourning to after the husband’s parole.

25. As the Mother states in her supporting affidavit of 5 July 2013, she was of the understanding that Page SC would be, pursuant to her instructions, resisting the preparation of any reports, and instead, pressing for the trial to go ahead on that same day. 

26. I accept the submission made on behalf of the Applicant that, following the reasons of Mason CJ in Giannarelli v Wraith (1988) 165 543 at [12], Page SC’s conduct in the case included a fundamental change to the presentation of the Applicant’s case. That is, Page SC, made submissions that there was a deficiency of evidence and that an expert report would need to be prepared and such submissions were contrary to the instructions of his client, the Applicant, who sought for the matter to go ahead on the grounds that preparing a report would not be in the children’s best interests in the circumstances.

27. Notwithstanding my findings above, an issue which also arises in the determination of this Application is the question of what occurred between the end of submissions at the hearing of 22 May 2013 and the handing up of the proposed orders by counsel.

28. A considerable period of time elapsed between the hearing of the matter, and the proposed orders being handed up to me during which time, as the Respondent argues, the Applicant had the opportunity to make her views known to her legal representatives. As was submitted by Fleming QC: 

    [a]fter the event … the independent children’s representative and [the representatives for the Respondent] went back to [Fleming QC’s] chambers where [they] started drafting the material and then [they] liaised with Mr Page for the course of the afternoon, until about three or four o’clock, in order that the order be prepared to his and his client’s satisfaction.[4] (my emphasis)

    [4]  P. 19 Transcript, 22 May 2013.

29. Notwithstanding there does appear to be a frame of time during which the Applicant may have had the opportunity to raise the issue with Page QC, in the circumstances of the case, particularly in light of the Post-Traumatic Stress Disorder, and keeping in mind the principles of natural justice, I shall exercise my discretion to discharge Orders 3 to 18 of the Order made 22 May 2013. The circumstances of the case give rise to a necessity to hear the Applicant’s case as to why this trial should go ahead without the preparation of expert reports. As such, I shall make orders to hear submissions in respect of the preparation of expert reports and to determine whether this matter is indeed ready for trial.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 16 August 2013.

Associate: 

Date:  16 August 2013