Railton & Railton

[2024] FedCFamC2F 394

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Railton & Railton [2024] FedCFamC2F 394

File number(s):	NCC 2970 of 2015
Judgment of:	JUDGE BETTS
Date of judgment:	21 March 2024
Catchwords:	FAMILY LAW – Parenting – one child, 11 years – where the Court set the matter down for final hearing and made orders pursuant to s 102NA of the Family Law Act1975 – where the mothers previous legal representatives withdrew a month out from the final hearing – where the mother has attended the final hearing self-represented – where the mother sought an adjournment of the final hearing on day one – where the mother subsequently left the Court precinct at the start of day two, citing her need to return home to City H to seek mental health assistance – where the Court adjourned the trial in order for a proper hearing to be conducted at a later date.
Legislation:	Family Law Act1975 (Cth), Pt VII
Division:	Division 2 Family Law
Number of paragraphs:	26
Date of last submission/s:	21 March 2024
Date of hearing:	20 and 21 March 2024
Place:	Newcastle
Counsel for the Applicant:	Ms Court
Solicitors for the Applicant:	Rachael Brennan & Associates
Solicitors for the First Respondent:	Self-represented
Solicitors for the Second Respondent:	No appearance
Counsel for the Independent Children’s Lawyer:	Ms Hamilton
Solicitors for the Independent Children’s Lawyer:	Foat Roberts Lawyers

ORDERS

NCC 2970 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS B RAILTON

Applicant

AND:

MS C RAILTON

First Respondent

MR DANESI

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	21 MARCH 2024

THE COURT ORDERS THAT:

1.NOTING that the mother has indicated to the Court today that she is very stressed, that she is experiencing mental health issues, that she intends to go back to City H and seek some mental health assistance, that she appeared to be visibly stressed today (and yesterday) and that she has left the Court room and appears to the Court to be unable to continue, the trial is aborted.

2.These Orders authorise the Independent Children’s Lawyer to communicate with Legal Aid NSW in relation to the status of any grant of legal aid to the mother (pursuant to the Cross Examination Scheme or otherwise) NOTING that the Court is anxious to ensure that the mother has access to the Cross Examination Scheme given Order 1 of the Orders of 1 September 2023 which read as follows:

Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975, the requirements of section 102NA(2) of the Act are to apply and the parties are prohibited from personally cross-examining each other at trial.

3.The proceedings are listed for a case management hearing before Judge Kearney at 9.30am on 15 August 2024 with leave given to the parties and their lawyers to appear audio-visually via MS Teams WITH:

(a)leave given to the parties to jointly approach chambers via email (…@...) to vacate the hearing if prior to the email being sent the parties have filed and served a Certificate of Compliance in the approved form Certificate of Readiness | Federal Circuit and Family Court of Australia (fcfcoa.gov.au) which may be amended (as required) to reflect that the relevant trial directions have been complied with;

(b)the parties being on notice that there may be costs implications if the hearing has to proceed because of a failure by a party/ies to comply with all the relevant trial directions;

(c)the chambers of Judge Kearney to electronically inform the parties of the dial‑in details for their audio-visual appearance via MS Teams.

Final hearing date/s:

4.The proceedings are listed for final hearing before Judge Kearney with PRIORITY commencing at 10.00am on 11 September 2024 with three (3) days allocated.

5.By no later than 31 May 2024, the mother is to do all acts and things to contact the Cross Examination Scheme administered by Legal Aid NSW to submit an application for funding for this hearing.  A copy of this Order together with a copy of these reasons are to be provided to the parties and to Legal Aid NSW. 

6.In the event of any issues arising the parties have liberty to apply to re-list the matter by email to Her Honour’s Associate.

Liaising with the Court Child Expert / Family Report writer and any applicable single expert witness:

7.Within seven (7) days of these Orders, or where a Court Child Expert / Family Report writer/ single expert witness has not yet been appointed then within seven (7) days of being advised of their identity, the Independent Children’s Lawyer must give them written notice of the final hearing dates and advise them that unless otherwise ordered:

(a)they will be required for cross-examination on the last day of the hearing;

(b)they are to give evidence in person or may give their evidence by videolink.

8.If the Court Child Expert / Family Report writer / single expert witness raises any availability issues, then the Independent Children’s Lawyer is to contact the trial Judge’s Associate by email as soon as possible to request a re-listing of the proceedings.  This is a continuing obligation up to and including the final hearing dates.

9.Unless otherwise ordered, the parties are not to provide the Court Child Expert / Family Report writer with any documents post-dating the most recent Family Report or single expert report.  A Court Child Expert or Court-appointed Family Report writer cannot ordinarily be expected to read updated material given time constraints and the Court’s limited resources.

Filing and service of trial material:

10.Whenever practical, all documents required to be filed and served, and all other documents sought to be relied upon at the final hearing, must be filed or provided (as applicable) in a text-searchable PDF format to the Court and to each other party.

11.By close of business on 1 August 2024, each party shall file and serve:

(a)any Amended Initiating Application or Amended Response to Initiating Application setting out with precision the final orders sought; and

(b)one (1) updated and consolidated trial Affidavit of each party;

(c)one (1) updated and consolidated trial affidavit of any witness/es whose evidence the party intends to rely upon;

with all such affidavits to comply with the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules, including as to spacing and font sizes.

The term “consolidated trial affidavit” is defined in Notation F.

12.A party who seeks to rely upon any material that has not been filed or served in accordance with these Orders, or which otherwise fails to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules, will require the leave of the trial judge.

13.By no later than 4.00pm, three (3) clear business days prior to the final hearing, each party shall file and serve an Outline of Case Document setting out:

(a)A list of the documents to be relied upon by that party;

(b)A list of the issues for determination;

(c)A brief chronology listing significant events that are relevant to the issues to be determined by the Court;

(d)In a parenting case, a brief summary of that party’s contentions with respect to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 which are said to be relevant to the orders proposed by that party;

(e)A list of authorities which that party intends to cite to the Court during the presentation of any arguments, together with copies of any unreported decisions to which it is intended to refer;

(f)A precise minute of the orders sought by the party.

Parties are not obliged to use the approved form for the Outline of Case Document but may do so if they wish. 

Objections to evidence:

14.By no later than 4 September 2024, the parties shall serve any objections to evidence.  Parties are to confer about objections prior to commencement of the final hearing with a view to reaching agreement or at least narrowing those in dispute.

Subpoenas & Tender Bundles:

15.The parties have leave to issue more than five (5) subpoenas.

16.Any subpoenas for the purposes of the final hearing are to be issued by no later than three (3) calendar months prior to the final hearing and are to be inspected by not later than five (5) weeks prior to the final hearing.

17.By no later than 21 August 2024, each party shall send to the trial Judge’s Associate a bundle of documents which that party proposes to tender at the hearing and for that purpose:

(a)the parties’ legal representatives and the Independent Children Lawyer (if appointed) are granted leave to copy all material marked as a subpoena packet in the proceedings.  This leave does not extend to a self-represented litigant or to a party personally;

(b)the documents are to be indexed, arranged chronologically and paginated, with the index to identify for each document the subpoena packet number, and the page number for the packet;

(c)whenever practical, the bundle is to be filed electronically and in a text-searchable PDF format;

(d)the tender bundle is to remain in the possession of legal representatives only and no documents from the bundle are to be released directly to the parties or to any witnesses without an order of the Court;

(e)if either party becomes self-represented they may contact the Registry after today’s date they may arrange to view the tender bundle in the subpoena viewing room prior to the final hearing;

(f)the tender bundle will be initially marked for identification only. Documents from the bundle will only be admitted into evidence as directed by the trial Judge in the course of the hearing.

18.In the event that a party wishes to call a witness who has prepared a business document that is present in the subpoenae material, that party is to issue a subpoena for that witness’ attendance by no later than 1 August 2024.

19.In the event that the mother remains self-represented, a copy of any Tender Bundle can be viewed at the Federal Circuit & Family Court of Australia registry from 23 August 2024.

Payment of Hearing Fee

20.Unless a fee waiver has been obtained:

(a)the Applicant is to pay to the Family Law Courts at City J the setting down fee/and the fee for day three of hearing, by no later than seven (7) days prior to the final hearing;

(b)the Respondent is required to pay the daily hearing fee for the second day of hearing/and the fee for day four of the hearing, by no later than seven (7) days prior to the final hearing;

(c)if the final hearing runs for longer than four (4) days, the Applicant is to pay the fee for day five (5) of hearing, the Respondent is to pay the hearing fee for day six (6) of hearing and so on.

Costs Notices

21.Pursuant to r.12.06(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, by no later than seven (7) days prior to the first day of the final hearing each party’s legal representative shall provide to their client written notice of:

(a)The client’s actual costs, both paid and owing, up to and including the final hearing.  In the case of paid costs, the costs notice is to identify the source of the funds;

(b)The estimated final costs of the party up to and including the final hearing; and

(c)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of expenses.

22.Pursuant to r.12.06(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 a copy of the Costs Notice must be provided to the trial Judge’s Associate on the business day before the first day of the final hearing.

THE COURT NOTES THAT:

A.If a Litigation Guardian is appointed for any party, that party is required to promptly advise the Court and each other party.

B.If any party intends to apply for a Litigation Guardian, the Court requests that such application be made as soon as possible and well ahead of the hearing date.  Any such application will be listed urgently.

C.These Orders do not derogate from any registry requirement for the execution and production of an undertaking prior to copy access being permitted.

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing date.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court and each other party.

H.A “consolidated trial Affidavit” refers to a “stand-alone” affidavit which contains a complete account of relevant factual matters known to the party or witness/es and it must not require the court to read the content of any earlier affidavit by that party or witness/es.

Example

A consolidated trial Affidavit cannot be in these terms:

“I repeat and rely upon my earlier affidavit filed on dd/mm/yy” or “This affidavit is to be read with my earlier affidavit of dd/mm/yy”.

The court will not read that earlier affidavit.  Relevant content from an earlier affidavit must instead be incorporated into the consolidated affidavit. 

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BETTS

1. These reasons were delivered orally.  They have been corrected from the transcript in order to make them easier to read.

2. These are long-running parenting proceedings concerning a child, X, who is eleven years of age. He is the son of Ms C Railton (“the mother”) and Mr Danesi (“the father”).  The parents were in a relationship from early 2011, married in 2012, and shortly thereafter the father was deported back to his home country of Country D. I understand that the mother is presently in the course of attempting to divorce Mr Danesi. He has not been an active participant in these proceedings for some years. 

3. Essentially, the proceedings are more accurately described as a debate between the maternal grandmother, Ms B Railton, who has the care of X, and the mother, who is her daughter.  

4. The proceedings originally related to the mother's desire to travel overseas with X, which the maternal grandmother objected to, citing safety concerns.  But they morphed into a much more significant dispute in late 2021 when the maternal grandmother evicted the mother from her home, citing safety and mental health issues on the mother’s part.  The mother was subsequently homeless for a period, as I understand it, and has since relocated to City H where she is re-partnered with a Mr E.

5. At a Compliance & Readiness Hearing on 1 September 2023, the proceedings were set down for a three (3) day hearing before me, commencing yesterday. At the Compliance & Readiness Hearing, the court made an order pursuant to s 102NA of the Family Law Act 1975 (“the Act”) prohibiting the mother and maternal grandmother from personally cross-examining each other. 

6. Most regrettably and frustratingly, the mother has attended court this week without legal representation and in circumstances where, given the operation of s 102NA of the Act, she would have been at a very distinct disadvantage had the trial proceeded. That is to say, she would have been unable to put her case to the maternal grandmother to the extent that their versions of events differ. In that respect, their versions of events differ quite dramatically in various aspects.

7. The circumstances surrounding the mother’s grant of legal aid are puzzling, if not rather opaque.  It would seem that her previous lawyer, Ms F of G Law Firm, had a grant of aid at one point in time.  Ms F had filed a Notice of Address for Service on 17 July 2023, interestingly prior to the making of the s 102NA order. Unfortunately, Ms F withdrew from the proceedings, filing a Notice of Withdrawal as Lawyer on 20 February, 2024, when the final hearing was just a month away.

8. I don’t criticise Ms F for this; she was acting entirely within her rights.  But the obvious difficulty then arose that the matter was going to be difficult to conduct as a trial. 

9. To that end, the matter had been re-listed before me on 1 March 2024, specifically to explore the circumstances surrounding the mother’s legal aid situation.  On that day, the court made various orders in relation to the conduct of the matter and specifically including liberty to seek an urgent re-listing in the event of any issues that might arise concerning the final hearing.  The matter otherwise remained listed for hearing on 20 March 2024.  The order of 1 March 2024 specifically noted that:

   Given the recent withdrawal by the mother’s solicitor appointed pursuant to section 102NA of the Family Law Act, the Court has suggested the mother urgently approach Legal Aid New South Wales to seek alternative legal representation if available.

10. That was probably an erroneous notation on my part because it would seem that Ms F was in fact in receipt of a ‘usual’ grant of legal aid (rather than a s 102NA grant). This is of course problematic in the sense that the mother would have to satisfy legal aid in New South Wales both as to merit as well as to her financial circumstances - whereas under s102 NA such matters would be, as I understand it, irrelevant.

11. For whatever reason, Ms F withdrew, and the court was left in a situation where the mother attended this week without a lawyer, and at an enormous forensic disadvantage.  I gave her the opportunity to seek an adjournment, as I considered that I should do so.  She took up that opportunity and made an application yesterday.  The matter was adjourned over to today for further argument, being what would have been day two (2) of the hearing.

12. But at the outset of the hearing today the mother was clearly emotional, clearly upset and indicated that she was simply unable to continue.  She said that she was very stressed, she could not represent herself, and that she was going back to City H to seek some immediate mental health assistance.  She then left the court room.  I did not interrupt her or say anything to her, because ensuring the health and wellbeing of people in the court is a priority, and frankly I saw little value in attempting to speak with her any further. 

1. The mother was clearly upset.  I would add that yesterday in the course of the hearing, she also appeared to be rather stressed and perhaps struggling. 

2. This is a disastrous situation, in my view.  I have no choice but to abort the hearing in circumstances where the mother cannot properly conduct it.  I am frustrated that apparently no application was ever made pursuant to the s 102 NA scheme.  To be fair to the mother, she is living in City H, and she said to me that she had submitted a paper application to Legal Aid New South Wales.  It perhaps highlights a problem the Courts experience in administering justice from time to time when there are different State bodies, different Territory bodies all administering essentially similar schemes, but that is the nature of the Commonwealth in which we live. 

3. I should also indicate here that Legal Aid New South Wales wrote to the mother on 20 March 2024, being what was day one (1) of the hearing, stating that they were cancelling her grant of legal aid because: “We’ve been advised that you no longer want the grant of aid”. 

4. It is all really rather mysterious to me, and I don't pretend to fully understand the chronology in this respect.  The mother herself was at a loss to understand what had gone on with her legal aid grant, which highlights to me the difficulties the mother sometimes experiences in terms of dealing with organisations, including probably this court, and in following the relevant processes, particularly if she’s experiencing mental health difficulty. 

5. The reality is that I have no choice but to adjourn this matter over and to abort this trial, but I am deeply troubled more generally about how the s 102 NA scheme can operate in cases such as this, not specifically limited to this matter, but more generally, and certainly not at all directed at Ms F per se. It troubles me enormously that if orders are made under s102 NA of the Act and a party is delinquent or otherwise fails to engage with their lawyer and to seek to instruct them properly, that trials could end up being adjourned effectively by reason of the default of that party.

6. I do not know what happened with the mother in this case.  My suspicion is that she didn’t fully instruct her solicitor Ms F - because she said she had “difficulty communicating” with her.  But I can’t make a finding about that, and frankly it is impossible to do so. 

7. I accept the mother is having difficulties, and clearly she is in terms of her mental health. 

8. In my view, something needs to be done to ensure that s 102 NA lawyers in future are not necessarily in a position to withdraw from a matter in the leadup to a hearing without a Court at least knowing why they are doing so. And as I say, this is a generic issue that is not specifically relevant to this case, because it seems Ms F was never engaged under section 102NA. But clearly courts cannot be left in the position where a s 102NA lawyer withdraws at late notice without any explanation to anyone, and the court then has to try to work out how to conduct a hearing where the Parliament has effectively deprived a litigant of the opportunity to personally cross-examine.

9. In any event, what I’m doing in this matter is, I’m aborting this trial and putting in place specific trial directions.  I have invited Ms Court of counsel and Ms Hamilton of counsel, who have been of great assistance to me, to prepare some proposed draft orders to accommodate the circumstances of this matter, and which hopefully will avert this trial being adjourned again. 

10. It seems to me that it is essential in this case that the ICL is able to communicate with Legal Aid New South Wales to find out what the status of the mother’s grant of legal aid is, if any.  It is incumbent on the mother to seek urgent legal aid assistance.  Equally, I accept that the mother is presently struggling with her mental health in a significant way, and it may be that a Litigation Guardian may potentially be necessary.  So the orders will contain a notation which addresses this contingency.  The orders will also provide for the mother to be able to inspect subpoenaed material in the event that she remains self-represented, although if she remains self-represented, I am very concerned that the trial will not be able to be conducted efficiently, and I do not know whether the mother’s mental health will cope with doing this a second time around.  That will be a matter for Judge Kearney, but it seems to me what cannot happen is that this matter be adjourned again.  It has to end.  It should have ended this week.

11. I am particularly mindful of the maternal grandmother who, at the age of 81, finds herself stuck in long-running litigation that she seems to have no escape route from.  I am concerned about this young boy who is clearly in a very difficult situation, and this litigation would be causing significant stress for him.  But I have no choice but to abort this hearing and to make orders that hopefully will prevent, or at least reduce the risk of, a future adjournment. 

12. If the mother’s mental health is not up to running a trial, she needs to make an application for a Litigation Guardian. If the mother wants to participate in this matter properly and to run her case efficiently, she needs to take up the s 102NA grant of aid.

13. I am going to include in the orders as well, a specific order that by no later than 31 May 2024 - so that is more than two (2) months away - the mother is to do all acts and things to contact the cross-examination scheme administered by Legal Aid New South Wales to submit an application for this hearing, and I will direct that a copy of this order today, together with a copy of these reasons, be provided to Legal Aid, and to the parties. This matter cannot ‘fall through the cracks again’, or at the very least, every effort is being made to ensure that it does not do so. 

14. Last but not least, given that:

    ·Ms C Railton’s affidavit makes fairly strong criticisms of some of the decisions I have previously made in this matter; and

    ·given the unfortunate way in which this trial has unfolded and the need for me to hear some submissions from the parties in Ms C Railton’s absence today; and

    ·also having regard to the need for justice to be seen to be done; and

    ·that the mother is clearly experiencing mental health issues;

    I consider, with some regret, that although I have had the conduct of this proceeding for quite some time, that in reality it should be looked at with a fresh pair of eyes.  The evidence will remain the same, but if it assists in the orderly continuation of this matter for a fresh set of judicial eyes to look at the matter, then I consider that in the interests of justice, I should simply assign the matter to a different judge.  And in the circumstances, I’m specifically listing it before her Honour Judge Kearney. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.

Associate:

Dated:       21 March 2024