Powell and Christensen

[2019] FamCA 461

FAMILY COURT OF AUSTRALIA

POWELL & CHRISTENSEN [2019] FamCA 461

FAMILY LAW – Interim hearing – proceedings involve both property and parenting matters – application to vacate trial dates and substitute an interim hearing.

Family Law Act 1975 (Cth) Div 12A

Kioa v West [1985] HCA 81

APPLICANT: Ms Powell

RESPONDENT: Mr Christensen

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: CAC 1032 of 2018

DATE DELIVERED: 15 July 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson Lawyers

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. It is noted that trial directions were made on 20 May 2019.  The Orders made below do not invalidate these existing trial directions, except to the extent of any conflict, in which event the below Orders prevail.

2. That proceedings be adjourned for trial commencing on 21 October 2019 at 10.00am.

3. The Respondent Father may file and serve affidavits (if he is able to obtain them) from:

   (a)       The Applicant Mother’s:

   (i)Mother;

   (ii)Brother;

   (iii)Partner;

   (b)       Mr C;

   (c)       Ms F; and

   (d)       Mr D.

4. The question of whether the Father may rely upon these affidavits is reserved to the trial.

5. In the event that further directions are required to ensure the readiness of this matter for trial, the parties may approach the Registrar for such directions.

6. The Applicant Mother’s costs of the hearing on 8 July 2019 are reserved.

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 Powell & Christensen 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 CANBERRA

FILE NUMBER: CAC1032 of 2018

Ms Powell

Applicant

And

Mr Christensen

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to this matter are Ms Powell, the Applicant Mother, and Mr Christensen, the Respondent Father.  The parties commenced a relationship in 2006 and separated on a final basis in May 2017, initially they remained living under one roof.  There are two children of the relationship, X, born in 2011 (currently aged seven years) and Y, born in 2009 (currently aged 10 years). 

2. The Father has not spent time with the children since June 2017.

3. The proceedings concern the parental responsibility and living arrangements of the children as well as the property of the parties. 

4. A final hearing date was allocated on 20 May 2019 for the week of 21 October 2019. On 20 May 2019 a series of trial directions were given to commence the preparation for the final hearing, with the matter returning on 8 July 2019 for further directions for the final hearing. The Father was advised at this point that he was subject to a ban on direct cross-examination pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”).  The effect of this ban was explained to him and he was advised that he could access the scheme administered by the Attorney-General for persons subject to the ban.

5. On the return of the matter on 8 July 2019, the Father advised both that he had not made an application under the scheme, and that he had not yet determined whether he would.

6. On this date, the Father complained that applications in a case filed by him on 27 March 2019 and 1 April 2019 had not been dealt with, and sought to have a series of other orders made.  Despite the matter being listed for directions, the parties indicated that they were able to deal with the applications in a case, and with the additional matters raised by the Father.

7. The applications in a case were dismissed during the hearing and reasons were given in an ex tempore manner.  In short, the applications sought the recusal of Judge Tonkin (who is not hearing the case, and, since the matter was transferred to the Family Court of Australia, sits on a court other than that hearing the case), and the adjournment of the trial date listed for April 2019 in front of Judge Tonkin (the case not having been heard on those dates, and those dates having passed by the time of these directions). 

8. This left the matters pursued by the Father in his minute of orders, which were as follows:

   1.That the court acknowledge the procedural unfairness and partiality that occurred in the Federal Circuit Court, as evidenced in the two applications relodged in the Family Court on 7-Jun 2019, and that accordingly:

   1.1A fair hearing for the Respondent would be impossible without the examination of any previous decisions of the Federal Circuit Court; and the rectification of the identified prejudices and biases;

   1.2Continuing to a final hearing in the circumstances of prejudice and bias favours the Applicant and disadvantages the Respondent, and would therefore constitute a miscarriage of justice;

   2.That the final hearing scheduled for 21-Oct 2019 be vacated;

   3.That an interim hearing for parenting matters be scheduled for 21-Oct 2019 in place of the final hearing - the same interim hearing that was previously scheduled on 26-Oct 2018 and then 29-Nov 2018 and was subsequently vacated in circumstances of prejudice and procedural unfairness to the respondent;

   4.That the Family Report produced by Ms E be not allowed into evidence (noting the report is not currently in evidence), due to:

   4.1Not having met the Terms of Reference in the orders of 25-Oct 2019 satisfactorily;

   4.2Not having met the Australian Standards of Practice for Family Assessments and Reporting satisfactorily;

   5.The parties shall obtain a new private Family Report from an expert, independent and impartial psychologist as may be agreed in writing between the parties and that for this purpose:

   5.1 The parties are to agree upon the expert within 21 days;

   5.2 The parties are to settle upon Terms of Reference within 14 days;

   5.3 The report is to be available 14 days prior to the interim hearing requested for 21-Oct 2019;

   6.That Order 2 of the Orders dated 29-Nov 2018, which amend Order 5 of the Orders dated 29-Aug 2019, be amended to read as follows:

   “The children shall communicate with the father by Skype each Tuesday between 6.00pm and 6.30pm and the mother shall not monitor or record the call electronically, in-person or otherwise”

   7.That within 21 days the Applicant provide to the Respondent in full any medical information regarding the children, relevant to this matter, including but not limited to:

   7.1The names and addresses of any treating doctors, psychologists or other medical professionals that have treated the children since Apr-2017;

   7.2Any email or written communications between such doctors and the Applicant or between those medical professionals;

   7.3Any written reports produced by those medical professionals;

   8.        That, regarding the Christensen Superfund:

   8.1 Within 60 days the Applicant is ordered to prepare and file tax returns for the Christensen Superfund for the last three years;

   8.2 Within 60 days the Applicant will provide fund member statements to the Applicant for both parties for each of the last 3 financial years;

   8.3 Within 75 days the Applicant shall arrange payment of any outstanding taxes, fees or duties by the Christensen Superfund;

   9.That the Conciliation Conference, previously scheduled for 10 Oct 2018 and vacated in Orders of on 25-Sep 2018 be rescheduled for a date:

   9.1 Subsequent to the completion of orders (8);

   9.2 At least 60 days prior to any interim or final hearings involving property matters;

   9.3 And that for that purpose the Applicant shall provide to the Respondent an updated set of financial disclosure from Feb-2019 to the date of production, 14 days prior to the Conciliation Conference;

   10.That within 30 days the Applicant shall provide to the Respondent documents supporting her testimony that her brother loaned her a significant amount of money, and the terms of that loan;

   11.That the Applicant will pay the Company G invoice #... from the property pool; (noting the Respondent is no longer able to pay this recurring storage fee and a copy of the invoice has been provided to the court and to the Applicant);

   12.That, regarding the affidavit of Mr H filed on 16-Apr 2019, the court notes the following:

   12.1 The incident testified to by Mr H involving the Applicant's treating psychologist;

   12.2The Respondent alleges professional misconduct on the part of Dr B;

   12.3 The Respondent alleges that Dr B's misconduct has had a material bearing on the matter before the court, including but not limited to the Applicant's state of mind and her testimony;

   12.4 That AHPRA and the Psychology Board of Australia are currently investigating these allegations of professional misconduct, but no official response is expected until at least October 2019;

   12.5 That the outcome of the investigation will have a bearing on the Respondent's preparation for a final hearing;

9. In large part the Father sought to justify these orders by his assertion that they are necessary for a fair hearing. 

10. It is unclear on what basis, or pursuant to what powers of the Court the Father sought the acknowledgement or the Orders at 1.1 and 1.2 of his minute.  The closest source of power (if there is a power at all) to what is sought by the Father in terms of acknowledgement, would appear to be in the exercise of Appellate jurisdiction from the Federal Circuit Court.  These proceedings are not of that nature and no jurisdiction rests in this Court under that head of power.  In any event, Orders 1.1 and 1.2 appear to be submissions in support of the acknowledgement, or in support of the further orders sought by the Father, rather than being orders sought.

11. The Father also sought an adjournment of the final hearing and the substitution of an interim hearing in its place.

12. This, he said, was in order to allow a fair trial, by avoiding what he described as circular reasoning, based upon the fact that he has not spent any time with his children.  He sought that there be an interim hearing about parenting to restore time with the children which in turn, he said, would inform the determination of the proper arrangements for the children.

13. Before dealing with this issue it is useful to note what was said by Mason J in Kioa v West regarding procedural fairness:

    It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right of interest of the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[1]

    [1]Kioa v West [1985] HCA 81, [28] (Murphy J).

14. The focus of procedural fairness, in terms of answering a case, is the provision of the opportunity to reply, rather than changing the underlying facts in order to provide a better answer.  It is not about levelling the forensic field by changing the underlying factual basis to be resolved at trial.

15. Taking into account that these are child related proceedings, and so the principles contained in Division 12A of Pt VII of the Act have application, an argument may be mounted that better evidence presented at trial has the potential to result in better outcomes for the children. It might be the case that spending time with the Father would lead to more current evidence about the nature of the relationship between the children and the Father, which might better reflect the needs of the children, as emphasised in Principle 1 as contained in Division 12A. I was not pointed to anything other than assertions that this would be the outcome.

16. Even if it is assumed that reinstating time prior to a final hearing would result in some improvement of the evidence in the children’s case, it is necessarily balanced against the consideration in Principle 1 that points to the impact of the proceedings upon a child, and also Principle 5 which directs that proceedings are to be “conducted without undue delay.”

17. It should also be considered it could not be predicted that the outcome of an interim hearing would be as the Father hopes.  It might, or it might not be, and I have not been provided with material to suggest either way what might occur should an interim application be pursued.  It should also be considered that final proceedings furnish the Court with greater potential to test evidence and draw conclusions than are open in the circumscribed conditions of an interim hearing.  That is, the contentious issue of whether the Father should have time with the children is more readily grappled with at a final hearing than at an interim hearing.

18. This is particularly so in this case where an aspect of the hearing will be the significance of an event occurring at about the time of the end of the relationship where the Father restrained the Mother in a car within the garage in the family home while he attempted to kill himself.  The details of this incident, and its significance may be anticipated to be the subject of some dispute that will require the facilities made available by a final hearing for their resolution.  Those consequences will not be able to be determined in the constrained circumstances of an interim hearing.

19. If the final hearing is adjourned as sought by the Father, there will likely be a significant delay before the matter could be listed for final hearing again.

20. These matters together tell against the Father’s application to adjourn the final hearing and substitute an interim hearing in its place.

21. The Father also sought the exclusion of the Family Report from the final hearing.

22. The Father complained that the Family Report, firstly, did not adhere to the relevant standards, secondly, that it was deficient in its failure to observe the Father with the children and, thirdly, that it failed to answer the terms of reference in relation to a psychological assessment of the parties.

23. On the first of these matters, failure to adhere to standards does not of itself render evidence inadmissible or irrelevant.  This appears to be an aspect that can be properly addressed at trial by objection taken within the context of the evidence available at trial and, if admitted, then the impact upon the weight to be assigned to the Family Report to be dealt with following cross-examination.

24. As to the second matter, given that the qualification of the Family Report Writer is as a social worker, and the terms included the psychological assessment of the parties, it is unsurprising that it did not answer that aspect of the terms of reference.  This does not, of itself, render the Family Report inadmissible.  It does however raise a practical question in terms of the conduct of, and preparation for the trial, being whether a significant hole will be left in the evidence at trial.  That potential hole was identified by the Father as relating to evidence as to his mental health.  He, however, intends to call his treating psychologist, Mr H, to give evidence at the trial.  He asserts that Mr H’s view as to the Father’s mental health is correct (and therefore, presumably, ought to be accepted by the Court).  Under these circumstances, from the Father’s perspective there is no gap in the evidence in relation to this matter. 

25. The third matter, being the preparation of the Family Report without recourse to the observation of the Father with the children, may provide a basis to test and critique the Family Report in order to determine the weight that should be given to it in the absence of such an observation.  It does not result in the necessary exclusion of the Family Report.

26. For these reasons the complaint about the Family Report Writer does not adequately support, at this stage, the exclusion of the Family Report or the adjournment of the trial, or an order for the preparation of a further report.  To the extent that there are complaints about the admissibility of aspects of the Family Report, they will fall to be determined in the light of the evidence produced for the trial, at the trial.

27. The Father also sought particular orders in relation to electronic communication with the children.  Evidence was not presented to justify such an order.

28. The Father sought an order in relation to disclosure, by the Mother, in respect of medical matters involving the children.  This was not opposed, although it was indicated that there was nothing to be provided by way of further disclosure, beyond what is recorded in her affidavit material.  A basis to require disclosure through a court order was not made out.

29. The Father also sought orders in relation to the Christensen Superannuation Fund, to compel the Mother to do certain things in relation to the fund.  Evidence was not presented to justify such a course.

30. The Father complained that a conciliation conference did not take place.  He asserted that one should take place before a final hearing in order to attempt to resolve the matter by consent.  There is no impediment to the parties seeking a resolution by agreement outside the confines of a conciliation conference.  The parties have polarised positions, whereby the Mother seeks that the children have no time with the Father.  It cannot be reasonably anticipated that a conciliation conference will assist in resolution.  If a conciliation conference has not taken place, it does not detract from the appropriateness of the current listing for final hearing.

31. The Father also sought particular disclosure about a financial matter concerning the Mother’s funding of her case.  The disclosure of documents is already governed by the Rules and no basis was given to demonstrate that there is a likelihood of non-compliance with those obligations absent further order.

32. The Father also sought what appears to be an interim property order in relation to storage fees.  A basis for such an order has not been made out.

33. Finally, the Father sought that the Court note a series of his assertions.  There is no imperative demonstrated to do so.  If these are matters important to the trial they can, no doubt, be emphasised in submissions if supported by evidence, and if shown to be relevant.

Trial directions

1. The parties were asked what was required to ready the matter for the trial.  The Father indicated both that he intended to call a number of witnesses, and that he doubted that they would provide affidavits (following it being indicated that witnesses’ evidence is to be given by affidavit).  The witnesses he proposes to call were for the purpose of attesting to his character.  They were the Mother’s mother, her brother, her current partner, her two best friends (as described by the Father) and a friend of the Father’s.  There is a live issue as to the importance of this issue in the proceedings.  The Mother’s position was that her complaint in the proceedings about the Father was not based upon his character.

2. Orders will be made to allow the Father to file and serve affidavits from these persons, with the question of whether he is able to rely upon them being reserved to the trial.

3. The Mother did not seek further procedural orders.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 July 2019.

Associate:

Date:  15 July 2019