Ruttledge and Ruttledge and Ors - [2014] FamCA 791

FAMILY COURT OF AUSTRALIA

RUTTLEDGE & RUTTLEDGE AND ORS

[2014] FamCA 791

FAMILY LAW – PRACTICE AND PROCEDURE – Where the paternal grandparents were the interveners – Where the interveners were not seeking any parenting orders to be made in their favour – Where the children’s interests are independently represented in these proceedings by an Independent Children’s Lawyer – Whether there is inherent unfairness to the mother if two parties, separately represented, essentially in the same interest, participate in the trial of the proceedings as parties – No basis for continued intervention

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

GPI Leisure Corp Limited v Herdman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

APPLICANT:

Mr Ruttledge

RESPONDENT:

Ms Ruttledge

INTERVENERS:

Ms Ruttledge Snr and Mr Ruttledge Snr

INDEPENDENT CHILDREN’S LAWYER:

Ms Doris Chan, Solicitor

FILE NUMBER:

BRC

13255

2007

DATE DELIVERED:

15 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

15 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Middleton

SOLICITOR FOR THE APPLICANT:

Schultz Toomey O’Brien Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Moore

SOLICITOR FOR THE RESPONDENT:

C Guilfoyle & Associates

SOLICITOR FOR THE INTERVENERS:

Ms Farnell, Solicitor, Family Law Solutions

Orders

It is ordered that:

1. The Interveners Mr and Ms Ruttledge Snr be removed as parties to these proceedings.

It is further ordered that:

Leave is given to the Mother’s witness Ms W to appear by electronic communication at the trial of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruttledge & Ruttledge and Ors 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 13255 of 2007

Mr Ruttledge

Applicant

And

Ms Ruttledge

Respondent

And

Ms Ruttledge Snr and Mr Ruttledge Snr

Interveners

EX TEMPORE REASONS FOR JUDGMENT

Section 92 of the Family Law Act 1975 (Cth) (“the Act”) provides for persons to intervene in proceedings before the Court. Specifically, subsection (1) provides that the Court may make an order entitling a person to intervene in the proceedings.
On 5 November 2012, Mr and Ms Ruttledge Snr, the paternal grandparents of the children, the subject of these parenting proceedings, filed an Application in a Case seeking leave to intervene.
Federal Magistrate Coates (as his Honour then was) made an order on 19 November 2012 that the grandparents, that is the present interveners, have leave to intervene. In delivering reasons for that decision, his Honour said, commencing at paragraph 28:
Although the grandparents have not decided what course of action they intend taking and while, normally, I would want some further particulars, they clearly ask that they be allowed to intervene, a family report be obtained and that they [then] set out, after the release of the family report [what they will seek].
(Emphasis Added)
And at 29:
It is not unknown, unfortunately, that grandparents in other matters have interfered. It is also not unknown that grandparents have stepped up to the mark when parents have had troubles dealing with all of the difficult issues which parents have to deal with when raising children in a situation where the parents themselves are separated from each other and where they have different values and different goals to be met.
And at 30:
I am going to allow the intervention of the grandparents. I am going to get a family report…
It is readily apparent from those Reasons that, at that early stage, his Honour was prepared to grant leave to intervene, albeit, as he noted, that he would normally want particulars as to the orders being sought by the interveners.
In the Case Information document now filed by the interveners on 11 September 2014 for this trial to commence today, there is a minute of order sought which simply provides:
The interveners consent to orders in terms of those proposed by the applicant father, save for the time that the child, [B], spends with the mother. The interveners propose that the child, [B], spend time with the mother as follows:
(1)each Saturday and Sunday and alternate weekends from 8.30 am until 4.30 pm on each day; and
(2)that such time shall continue during school holiday periods.
Cross-referenced to the orders that are sought by the father, it cannot be said that the interveners have particularised any parenting orders they seek to be made in their favour, within the meaning of s 64B of the Act. Subsection (6) of s 64B relevantly provides:
For the purposes of this Act:
(a)a parenting order that provides that a child is to live with a person is made in favour of that person; and
(b)a parenting order that provides that a child is to spend time with a person is made in favour of that person; and
(c)a parenting order that provides that a child is to have communication with a person is made in favour of that person; and
(d) a parenting order that:
(i)allocates parental responsibility for a child to a person; or
(ii)provides that a person is to share parental responsibility for a child with another person;
is made in favour of that person.
(Original Emphasis)
I reiterate that within the meaning of that section, the present interveners do not seek any parenting orders to be made in their favour.
It is submitted by Ms Farnell that the interveners have a statutory right to be parties to the proceedings. That is so insofar as s 65C provides for who may apply for a parenting order. Section 65C provides that:
A parenting order in relation to a child may be applied for by:
(a)either or both of the child’s parents; or
(b)the child; or
(c)a grandparent of the child; or
(d)any other person concerned with the care, welfare or development of the child.
However, it seems to me that it is implicit in s 65C, having regard to the provisions in s 64B(6) that I have referred to, that a person must be seeking an order or a parenting order in their favour to support an application by them as a party within the meaning of s 65C.
In these proceedings, the children, the subject of them, have had an order made under s 68L for their interests in the proceedings to be independently represented in the proceedings. I also note that these are child related proceedings within the meaning of Division 12A. The principles for conducting such proceedings are set out in s 69ZN, and a range of powers are set out within Division 12A reflecting that the Court must actively manage and control the proceedings.
Moreover, the Family Law Rules 2004 (Cth) provide for who is or is not a necessary party to the proceedings, and r 6.02 makes specific reference to parties directly affected by the outcome of the proceedings.
It is submitted this morning (for the first time) that the interveners would seek, in the event that the Court determined that it was not in the best interests of the children to live with either parent, that the interveners would support orders for the Court to place the children primarily in the care and residence of the paternal grandparents. However, that is not the subject of any application that has been made formally by the interveners over the lengthy duration that these proceedings have been on foot and I accept the submission by counsel on behalf of the mother that she at least is taken by surprise by that.
Whilst historically, in an earlier family report, passing reference was made to that potential, at no point have the interveners formalised orders sought in those terms in any alternate form. Moreover, the recent family report obtained for the purposes of this trial does not contemplate consideration of that as an outcome, and I accept the submission of Mr Andrew of Counsel on behalf of the Independent Children’s Lawyer (“the ICL”) that the ICL did not come to this trial ready to meet a case to that effect, and that option has not been the subject of any investigation.
In these circumstances, it seems to me that there would be an inherent unfairness to the mother if two parties, separately represented, essentially in the same interest, participate in the trial of the proceedings as parties. There would be potentially cross-examination by two other legally represented parties of the same witnesses, submissions which mirror each other by two separate parties, and there would be the potential for leading questions to be asked of the father and his witnesses by the interveners, and vice versa.
I should say that, in this context, there is clear law, aside from the Family Law Rules and aside from the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) , that a trial judge has a duty to ensure that all parties have a fair trial. A trial judge must exercise discretion in and about the examination and cross-examination of witnesses to ensure a fair trial. Young J in GPI Leisure Corp Limited v Herdman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 reviewed the relevant authorities and stated conclusions as to these principles. In particular, he included as one principle that:
Ordinarily, where parties are in the same interests, a judge will apply the rule not to permit more than one counsel to cross-examine the same witness.
Section 26(c) of the Evidence Act gives power to the Court to make such orders as it considers just in relation to the order in which the parties may question a witness and s 42 of the Evidence Act gives power to the Court to disallow leading questions put to a witness in cross-examination. Section 42(2) sets out the criteria which may be taken into account in the exercise of the Court’s discretion. It seems to me that, in this case, even if the interveners were allowed to continue to participate as separate parties, it would be necessary to impose restrictions pursuant to both the common law and pursuant to the principles expressed in the Evidence Act to restrict the questioning of relevant witnesses by parties in the same case (see also NMFM Property Pty Ltd and Others v Citibank Ltd (1999) 161 ALR 581 and Cheers v El Davo Pty Ltd (in Liquidation) [2000] FCA 144).
I reiterate that the children’s interests are independently represented in these proceedings pursuant to the Act. Whilst obviously that is not, in and of itself necessarily, in all cases, a reason not to permit intervention, in circumstances where the interveners do not seek parenting orders to be made in their favour (other than the alternative foreshadowed orders that take the other parties by surprise), then it seems to me that this is not a basis to permit the intervention to continue, given the duty required for there to be a fair trial.
For these reasons I order that the interveners be removed as parties to the proceedings.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 September 2014.

Associate:

Date: 15 September 2014