Stiles and Bale
[2008] FMCAfam 657
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STILES & BALE | [2008] FMCAfam 657 |
| FAMILY LAW – Parenting – re-visiting recovery order – duties of lawyers – misleading the court. |
| Family Law Act 1975, Part VII, ss. 60J, 60K (1)(d), 67Z Law Council of Australia: Model Rules of Professional Conduct and Practice, Rule 13, Part 14, Rules 14.1, 14.2, 14.4, 14.4.1, 14.4.2, 14.4.3 |
| Ashmore v Corporation of Lloyds [1992] 1 WLR 446 Sir Gerard Brennan, “Pillars of Professional Practice: Functions and Standards,” (1987) 61 ALJ 112 |
| Applicant (Respondent): | MS STILES |
| Respondent (Applicant) | MR BALE |
| File Number: | CAC 778 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 17 June 2008 |
| Date of Last Submission: | 17 June 2008 |
| Delivered at: | Canberra |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Ken Cush & Associates |
| Counsel for the Respondent: | Mr Black |
| Solicitors for the Respondent: | Patrick Black & Associates |
ORDERS
Order 2 of 15th May 2008 is discharged.
Until further order, the children shall live with their Mother.
To avoid the need to issue a recovery order, the parties are to agree on an appropriate process of returning the children to the care of the Mother.
The parties are to agree on the time the children are to spend with their Father, Mr Bale.
Until further order, the parties, and their partners, are restrained from physically disciplining the children
The parties, and their partners, are not to denigrate the other parent (or their partner) in front of the children or otherwise, and are to use their best endeavours to ensure that no one else does so either.
The parties, and their partners, are not to discuss these proceedings in front of the children or otherwise, and are to use their best endeavours to ensure that no one else does so either.
Without the written consent of the other parent, or order of the Court, the parties, and/or their partners, are not to take the children to see any health care professional or counsellor.
Mr Black is to pay the costs of Ms Stiles, as agreed or taxed, for the hearing on 17th June 2008.
The matter be adjourned to 17 September 2008 at 11.30am.
IT IS NOTED that publication of this judgment under the pseudonym Stiles & Bale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 778 of 2008
| MS STILES |
Applicant/Respondent
And
| MR BALE |
Respondent/Applicant
REASONS FOR JUDGMENT
Preamble
This is a long and difficult judgment. Why this is so may be assumed but will become evident in the course of these reasons.
The following reasons do not reflect, and should not be taken to reflect, any settled view or any comment on the issues ultimately to be determined between the parties at a final hearing.
Wherever there appears reference to either “counsel” or “barrister”, unless otherwise specified, the duties referred to should be taken as applicable also to solicitors, especially where, as is very often the case, solicitors in family law proceedings appear on their client’s behalf in ex parte and other urgent applications.
The reasons are broadly in four parts: Introduction & Background, Procedural Fairness, Misleading the Court, The Hearing in Wagga Wagga on 15th May 2008.
There are many authorities referred to in these reasons. The full citations are given in the written version of them, which will be made available shortly.
Introduction
On 15th May this year in Wagga Wagga, I heard an ex parte application on behalf of Mr Bale for the recovery of his children, [A] and [B], who are 10 and 9 years old. Mr Black, from Patrick Black & Associates of Wagga Wagga, appeared on behalf of Mr Bale.
Typical of ex parte applications, there was not a large amount of evidence available to the Court, and claims of urgency were made about risk to a child, in this case [A] in particular. After a brief hearing, I made orders for the recovery of the children from their Mother. I will come back to the details of the hearing and related matters shortly.
An Application was filed, on behalf of [A] and [B]’s Mother, Ms Stiles, on 26th May 2008. I heard that Application on 17th June, at which
Ms Tonkin of Counsel appeared on behalf of Ms Stiles, and Mr Black appeared on behalf of Mr Bale.
That Application sought Orders to discharge Order 2 made on
15th May, whereby I ordered that the children live with Mr Bale.
A further order sought was that until further order of the Court, the children live with their Mother.
Submissions made at the hearing late in the late afternoon and early evening of 17th June may be summarised, for present purposes, as follows.
Ms Tonkin put her arguments on two fronts. First, there was the issue of late service of affidavits, which, she contended, was (a) procedurally unfair and (b) deliberately so on the part of Mr Black. Ms Tonkin submitted that she, her solicitor and her client, were placed in an untenable position for the hearing on the 17th because they were provided with copies of the 11 affidavits relied upon by the applicant Father, Mr Bale, only at 4.12pm on the afternoon of the hearing.
Ms Tonkin’s second ground of complaint was that the Court was knowingly misled in the application on 15th May 2008. She submitted that had the Court been properly apprised of the facts of the matter, I would not have made the orders I did.
For his part, Mr Black submitted that the best course in the circumstances, notably in relation to the 11 affidavits filed between
12th and 16th June 2008, and the application more generally, was to adjourn the matter so that the immediate procedural deficiency, which he seemed to acknowledge, could be remedied. He contended that he served the documents shortly before the commencement of the hearing because he wished to serve sealed copies only. He seemed either unconcerned or did not wish to acknowledge the importance of giving due and proper notice of documents to Counsel and the legal representatives for Ms Stiles.
Professional courtesy, apart from anything else, should have led him at least to make available to the other side copies of the unsealed affidavits as soon as he had them. I will deal with his arguments regarding Ms Tonkin’s submission of misleading the Court later in these reasons.
The argument about wishing to serve sealed copies only, does not, in my view, hold any weight, and for many reasons. For example, four of the affidavits were filed with the Court on 12th June, and a further
3 affidavits on 13th June. The remaining 4 affidavits were filed on
16th June. At the very least, Mr Black could have, and should have, provided unsealed copies at least as early as 12th & 13th June. Even on the day before the hearing Mr Black was in possession of all of the affidavits. None of them, in any form, were provided to the legal representatives of Ms Stiles until 8 minutes before the commencement of the hearing before me on 17th June.
In short, I agree with both of Ms Tonkin’s substantive submissions, regarding lack of procedural fairness and in relation to mis-leading the Court. Because of the immediate consequences for the current proceedings and the children involved, and the possible longer-term implications otherwise, of accepting them, it is essential that I provide in detail the factual and legal foundations for doing so. The remainder of these reasons provide these details. I will deal firstly with the issue of procedural fairness; then with the issue of misleading the Court.
However, before doing so, there is one further ground of complaint, not raised formally by Ms Tonkin but adverted to in passing at the hearing on 17th June. For the sake of completeness, I will deal with it now summarily. It relates to the failure of Mr Black to comply with the Rules of Court regarding the requirements of documents. The relevant Rule is 2.01 of the FMC Rules. Given the gravity of the substantive issues raised in the proceedings, which include allegations of marital rape, orchestrated gang rapes, risk of self harm to one of the children, the risk of abuse to the children, and much more besides, to complain about the volume of the affidavits – both in number and in length (one affidavit alone is 144 paragraphs in length), and that they invariably fail to comply with the most basic of Rules of the Court concerning font size, spacing etc – seems almost trite. My complaints in this regard are not trite and are not intended to be so.
The Rules in relation to documents filed with the Court are intended to facilitate, as far as possible, that the Court, and all parties to the proceedings, have available all relevant issues and in a manner that is consistent, clear, and legible. Failure to comply with the Rules in relation to documents, especially when it is on such a large scale as here, inhibits everyone involved in the proceedings from dealing with the substantive issues in a logical, coherent and consistent manner. When basic failures of this kind are the product of experienced practitioners, I cannot find any reasonable excuse. It may be a tad trite in the circumstances, but to expect a Court to plough through voluminous amounts of material at any time is difficult. To expect that to occur where there is an urgent application, such as here, which is presented in very small font size, incorrect margins and spacing, not to mention significant duplication, is guaranteed to ensure, at least, ill humour by the presiding judicial officer, if not to risk having the material rejected as a matter of form.
I turn to firstly, and necessarily briefly, to the issue of procedural fairness.
Procedural Fairness
It is a long-standing principle of natural justice, as well as professional practice which is crucial to the administration of justice, that every party to an action have an appropriate opportunity to know, and therefore to meet, the contentions raised against them. Put another way, parties to proceedings have a legitimate expectation to receive procedural fairness before any orders are made. There are innumerable authorities to this effect. They include FAI Insurances Ltd v Winnecke (1982) 151 CLR 342 and Kioa v West (1985) 159 CLR 550.
Perhaps most succinctly, there is Harman LJ’s pithy statement in the famous case of Ridge v Baldwin (before it went to the House of Lords) [1963] 1 QB 578, where his Lordship said that natural justice was nothing more than “fair play in action.”
Among many more recent judicial pronouncements, there is the following from the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1. In that case, Chief Justice Gleeson said [at 37]: “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
By any measure, the failure by a legal practitioner to provide one’s professional opponent with all relevant documents prior to a hearing is a glaring example of what is not “fair play in action.” It amounts at least to professional discourtesy, as well as a genuine impediment to the administration of justice, in this case, the administration and determination of issues raised in the proceedings between the parties to this litigation. It is also a clear example of what Gleeson CJ described as “practical injustice.”
No less unfair is providing the documents to be relied on just prior to the matter being heard.
In my view, the actions of Mr Black in failing to provide Ms Stiles’ legal representatives of any relevant documents until they were almost walking in the Court door prejudiced the conduct of the proceedings before me. The conduct, in my view, was at least unprofessional. His explanation for his conduct in this regard was unsatisfactory.
I am not able to make any determination as to whether it was deliberately calculated to make the conduct of the hearing more difficult than it otherwise was going to be. That said, I can readily understand and appreciate fully Ms Tonkin’s submission, which was to the effect that, in the absence of any plausible explanation, the logical (and perhaps only) inference to be drawn was that it was a deliberate course designed to hamper the conduct of the Mother’s case. In the light of what I have already said and in the light of the orders I will make shortly, I will not dwell on this aspect further. I move to the second issue: that of “misleading the Court.”
Misleading the Court
My remarks here are divided into three sections. First I will consider extra-judicial writing and authoritative regulatory pronouncements, such as the Law Council of Australia’s “Model Rules of Professional Conduct and Practice” (2002). Secondly, I will consider a range of judicial authorities relevant to the subject, and not otherwise referred to earlier. Thirdly, I will deal with the facts of this matter in the light of the principles previously outlined.
Extra-Judicial Materials
In addition to the Law Council of Australia’s Model Rules, my main points of reference are: Sir Gerard Brennan’s address “Pillars of Professional Practice: Functions and Standards,”[1] Ipp J’s article, “Lawyers’ Duties to the Court,”[2] and Chapter 17 of Professor G.E. Dal Pont’s Lawyers’ Professional Responsibility, which is entitled “Duty to the Court.”[3]
[1] (1987) 61 ALJ 112.
[2] (1998) 114 LQR 63.
[3] (Third Edition) (Sydney: Thomson-Lawbook Co., 2006). See also, Y. Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Fourth Edition) (Sydney: LexisNexis-Butterworths, 2005).
Sir Gerard Brennan’s paper was first conceived and presented as the inaugural Sir Leo Cussen Memorial Lecture, delivered on 14th November 1986. His Honour dealt with four qualities of a legal practitioner. Although perhaps intended to apply most directly to Counsel, Sir Gerard’s principles have general application to all legal practitioners. The qualities he listed were: legal competence, service to the community, professional commitment beyond the call of duty, and personal integrity. I will not summarise how his Honour dealt with each of them. It is sufficient for present purposes to note the following.
First, in relation to the third quality, “professional commitment,” Brennan J referred to part of an address by Sir Owen Dixon, re-published in his seminal papers, Jesting Pilate.[4] As quoted by Brennan J, Sir Owen Dixon said: “Unless high standards of conduct are maintained by those who pursue a profession requiring great skill begotten of special knowledge, the trust and confidence of the very community that is to be served is lost and thus the function itself of the profession is frustrated.” Similarly, practitioners who do not uphold the highest of standards also risk losing the trust of the Court and other practitioners. Upon what else can a court rely except what it is told and put before it? Orders and judgments depend on the accuracy and completeness of what is put before the court.
[4] Jesting Pilate (Sydney: The Law Book Company, 1965) p.192.
Secondly, while still a member of the Supreme Court of Western Australia (but more recently a Judge of Appeal of the New South Wales Supreme Court) Justice Ipp took a sabbatical at the Institute of Advanced Legal Studies, London and the Inns of Court in that city. While there he completed a paper later published in the Law Quarterly Review entitled “Lawyers’ Duties to the Court.”[5]
[5] (1998) 114 LQR 63.
His Honour’s detailed article helpfully summarises the various duties, essentially from the common law, which lawyers (be they barristers or solicitors) owe to the Court and to the client. I will deal with duties, for example, as set out in instruments issued by professional bodies (such as the Law Council of Australia), shortly. A few short points may be made immediately from Ipp J’s article.
First, as stated by Lord Morris, the source of the duties owed is the “public interest.” He states: “… the court, in enforcing them, is acting as a trustee and guardian of the due administration of justice.”[6]
[6] Rondel v Worsley [1969] 1 AC 191 at p.227.
Secondly, his Honour summaries the fourfold category of duties this way: the general duty of disclosure owed to the Court, the general duty not to abuse the court process, the general duty not to corrupt the administration of justice, and the general duty to conduct cases efficiently and expeditiously.[7] Ipp J continued:
The first three… duties are derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest, obstructive, or inefficient practices. The essence of these duties is the requirement for lawyers (within the context of the adversarial system) to act professionally, with scrupulous fairness and integrity and to aid the court in promoting the cause of justice.[8]
[7] “Lawyers’ Duties to the Court,” (1998) 114 LQR at p.65.
[8] Ibid., p.65 [internal references omitted].
In Rondel v Worsley Lord Reid said:[9]
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But as an officer of the court concerned in the administration of justice, he has an overriding duty to the court…. Counsel must not mislead the court ... he must not withhold authorities or documents which may well tell against his client but which the law or the standards of his profession require him to produce.
[9] [1969] 1 AC 191 at p.227.
By way of summary, Ipp J states that the duty of disclosure to the Court is two fold: first, to disclose the law; secondly, not to mislead as to the facts.[10] He continues:
Ex parte applications, by their nature are not adversarial, and the court in those circumstances does not have the benefit of representation of all parties involved in the litigation. Accordingly, it is then the lawyer’s unqualified duty to make full disclosure to the court so that the court’s decision is made on a fully informed basis.[11]
[10] “Lawyers’ Duties to the Court,” op. cit., pp.67-68.
[11] Ibid., p.69 [internal references omitted]. See also Ipp J’s discussion, at p.70-71, regarding the duty to disclose all material evidence in family law matters, described as a “duty of frankness and disclosure, stemming from public interest.”
Because various duties are dealt with further below, I need only note here Ipp J’s observations, so far as they are relevant to the current matters before this Court. Other duties explained and supported by judicial authority include the duty to be truthful in the pleadings put before the Court, to avoid excessive zeal, especially when to do so risks misleading the court. As Mason CJ said, in Giannarelli v Wraith, “[t]he performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court….”[12]
[12] (1988) 165 CLR 543 at p.556. In Ashmore v Corporation of Lloyds [1992] 1 WLR 446 at p.453, Lord Templeman referred to the related duty of counsel to assist the judge by simplification and concentration on the specific issues to be determined, thereby bringing before the Court and highlighting the particular issues for immediate determination.
The final matter to note is that lawyers have a duty to exercise their independent judgment. So much was expressly stated by Mason CJ in Giannarelli v Wraith, where he said:
The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.[13]
[13] Ibid.
Law Council of Australia: Model Rules of Professional Conduct and Practice
In large measure, these Rules, which were issued in March 2002, codify and summarise the principles outlined already from the general law. The part of these Rules most immediately relevant is Part 14, entitled “Frankness in court.” Rule 14.1 states that a “practitioner must not knowingly make a misleading statement to a court.” Rule 14.2 states: “A practitioner must take all necessary steps to correct any misleading statement made by the practitioner to a court as soon as possible after the practitioner becomes aware that the statement was misleading.”
Rule 14.4 deals with the duty of a practitioner in relation to ex parte applications. The Rule provides: “A practitioner seeking interlocutory relief in an ex parte application must disclose to the court all factual and legal matters which (14.4.1) are within the practitioner’s knowledge, (14.4.2) are not protected by legal professional privilege and (14.4.3) the practitioner has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
More generally, the preamble to the section “Advocacy and Litigation Rules” states:
Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the court …
Rule 13 deals with the essential duty of practitioners to bring an independent mind to proceedings and to exercise what the Rules describe as “forensic judgment” during the case.
These Rules from the Law Council of Australia are complemented by the “Best practice guidelines for lawyers doing family law work”, which were issued in March 2004 by the Family Law Council and the Family Law Section of the Law Council of Australia.[14]
[14] See, for example, Part 1 (Best practice: conduct and communication), section 4.11 (regarding duties to the Court, notably including “full and frank disclosure”), section 7.5 (compliance with court rules), section 7.8 (disclosure); Part 6 (Children), section 7 (the requirement to file a notice of risk of abuse).
For the sake of completeness, I note that similar duties and responsibilities as already outlined are detailed in the Law Society of New South Wales Professional Conduct and Practice Rules (“the Law Society’s Rules”). These Rules formally incorporate the National Model Rules issued by the Law Council of Australia. The Law Society’s Rules include the usual requirements regarding candour and independent judgment.[15]
[15] Generally, see Rules 17-24 of the Law Society’s Rules.
Also for the sake of completeness, s.33 of the Legal Profession Act (NSW) 2004 confirms the long-held position that a lawyer is an `officer of the Court.’[16]
[16] For a general overview of the historical reality of duties attaching to lawyers as officers of the court, see G.E. Dal Pont, Lawyers’ Professional Responsibility (Third Edition) (Sydney: Thomson-Lawbook Co, 2006) Chapter 17. For ease of reference, wherever this work occurs in these reasons, unless otherwise required, it will be cited as “Dal Pont.”
Because of what has already been stated from a number of cases, I can be relatively brief in relation to other authority, to which I now turn.
Judicial Authorities on Duties of Lawyers
I need not, and will not, repeat the matters already canvassed in these reasons from the judgments of Lord Reid in Rondel v Worsley and Mason CJ in Giannarelli v Wraith.
In In re Davis, Dixon J said: “… the duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges.”[17] Again I accent that the basic principle put forward by Dixon J applies, in my view, equally to solicitors who appear as advocates before the Court as they do to Counsel.
[17] (1947) 75 CLR 409 at p.420
In Ziems v The Prothonotary of the Supreme Court of NSW, Kitto J said:
… a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.[18]
[18] Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at p.298.
After citing Ziems’ case, the NSW Court of Appeal stated the following
Frankness should be one of the attributes of a barrister. It is his duty not to keep back from the court any information which ought to be before it, and he must in no way mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or knowingly permit a client to attempt to deceive the court.[19]
[19] Re Gruzman; Ex parte The Prothontary (1968) 70 SR (NSW) 316 at p.323.
In the English Court of Appeal, Brooke LJ stated: “The English system of justice has always been dependent on the quality of the assistance that advocates give to the bench.”[20] I agree, respectfully, with his Lordship. The Court is utterly dependent on the facts, law and assistance provided by those who appear before the Bench.
[20] Copeland v Smith [2000] 1 WLR 1371 at p.1376.
There are many instances of high authority regarding the reliance of the court on those who appear before the Court. A typically expansive outline of the importance of lawyers’ candour is in Kirby P’s judgment in NSW Bar Association v Thomas [No. 2], where his Honour said: “Once admitted, the additional duties of invariable candour as well as honesty to a court prevail.”[21] Dal Pont puts it this way: “As an “assistant in the administration of justice”, a lawyer must be able to command the confidence and respect of the court.”[22] The same author also observes, in my view correctly, that conduct by a lawyer that misleads a court, unless warranted by the law, “undermines the confidence that courts and fellow lawyers can thereafter place in her or his integrity.”[23]
[21] (1989) 18 NSWLR 193 at p.204.
[22] Dal Pont, Lawyers’ Professional Responsibility, p.384. See also the judgments of the Full Court of the Supreme Court of Western Australia in Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at p.57 (Ipp J), and at p.62 (Steytler J and Parker J).
[23] Dal Pont, Lawyers’ Professional Responsibility, p.384. He continues [at pp.384-85], citing among other cases, O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at p.230 (Clarke JA), to the effect that wilfully misleading the court has been judicially described as “outrageously dishonourable” and as such deserving of strong disciplinary action.
In all that I have said so far, and what remains to be said, I remain acutely conscious of the sage warning of Fullager J in Ziems’ case, where his Honour cautioned about the necessity of being very sure of the facts before making any serious finding, in that case, that a barrister was not a fit and proper person to practise at the Bar.[24] Should it need to be said, this is a case very different to that which faced the court in Ziems.
[24] Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at p.296. See also Deane J in Smith v NSW Bar Association (1992) 176 CLR 256 at p.272.
It is clear that the duty to the court extends to ensuring that no evidence is put before the court that is misleading. This dimension of the duty includes a lawyer ensuring that no statement, or pleading for that matter, which is perjured or that contains half-truths, which thereby may otherwise mislead the court.[25] This will more than suffice in relation to judicial pronouncements regarding duties of lawyers to the court. It remains to consider and to apply these principles to the facts and circumstances of the facts of the matter currently before the Court.
[25] Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at p.60 (Ipp J), and Meek v Fleming [1961] 2 QB 366.
The Current Application
In the course of submissions on 17th June, Mr Black confirmed that he had attempted to file an application on 7th May and that it be treated under s.60J, which deals with applications under Part VII in situations where there are “reasonable grounds to believe that” there has been abuse of a child or family violence. That application – the details of which have not been specified - was rejected. (The transcript has erroneously recorded Mr Black as referring to s.60R. No such section exists.)
Mr Black then confirms that the application was filed, and in his words “re-badged” seeking a recovery order. One curiosity – and it is much more than that – is that to date, no “Notice of Risk of Abuse”, pursuant to ss.60K(1)(d) and 67Z, and Rule 2.04D of the Family Law Rules, has ever been filed. That omission has not been addressed.
These simple facts pose a question about the “forensic judgments” made in initiating the proceedings in this Court. I will come back to these matters soon enough. I move to a consideration of the facts of the ex parte hearing before me in Wagga Wagga on 15th May 2008.
The Ex parte Hearing on 15th May 2008
By letter dated and faxed to the Registrar of this Court in Canberra on 12th May 2008, an Application was filed, together with three affidavits; two sworn by the applicant Father, Mr Bale, and two by his partner,
Ms G. They are dated 7th May (one each by Mr Bale and Ms G) and 12th May (again one each by the same persons) respectively. Each of these four affidavits were prepared by and affirmed before Mr Black. All of these documents bear a Registry stamp dated 13th May 2008.
The Application sought orders “discharging all previous orders”, that the children live with the Father, that their Mother spend time with the children as agreed or by Court order, and that Ms Stiles’s partner, Mr S, be restrained from coming within a distance of 50 metres of the children.
Part D of the Application, which deals with “Children”, confirms to the Court and to any other reader of the document, that `the children live with the Father.’ That is, the document represents that the children currently live with the Father. The reality was that that was the order sought by Mr Bale. As well, Part F of the Application deals with “Other Court Cases and Orders.” The section is marked confirming that there are no other court cases in relation to family law involving the parties to the current application or the children listed. Clearly, as noted further below, Mr Bale deposes to his knowledge of the recovery orders that required the children to return to their Mother. Why these sections of the Application are erroneously completed has not been explained.
The Application was affirmed by Mr Bale and witnessed by Mr Black.
The Application has attached to it a copy of Consent Orders, dated 22nd June 2004. Those Orders expressly provide that the children live with their Mother, Ms Stiles. So far as I can see, and I am more than content to be corrected, there is no reference in any of the affidavits that were before me in Wagga Wagga to the Consent Orders of June 2004.
As well, the Transcript from the brief hearing on 15th May, confirms that Mr Black made no reference to or mention of them either.
In submissions to the Court on 17th June regarding the Consent Orders Mr Black said: “… from memory I recall [they] weren’t filed with the Court with the initial application.” We know that they were attached.
In my view, the omissions and incorrect statements in the Application and in the affidavits are significant. At the very least, they were apt to, and did, mislead the Court.
In the case of the Court’s capacity to rely upon what it is told by lawyers appearing before it, having read the affidavits and the application, the Court was at least entitled to rely upon what it was told. It was not told about, and clearly did not have drawn to its attention, the Consent Orders. In my view, that was a significant omission on Mr Black’s part. It was a highly relevant fact that was not brought to the Court’s attention, added to which is the misleading Application which, on its face, states that the children live with their Father, and that there are no other proceedings on foot involving the children.
In addition, the material omitted in Mr Bale’s affidavit, and the way it is crafted, was also apt to mislead. For example, in par.2 of his affidavit of 7th May, Mr Bale states that “over the past five and half years things have been going relatively smooth [sic].” And in par.7, he states: “Apart from a few lies and some grief, things have been going relatively smoothly till [Mr S] and [Ms Stiles] got engaged around September 2007….” There is reference also to some sort of notification to DOCS. Notably, there is no involvement of the Department in the proceedings to date. I do not necessarily draw any inference, one way or the other, about that at this stage.
The impression conveyed by these paragraphs, and the remainder of the affidavit’s exclusive focus on “recent events”, is that Mr Bale has been a significant part of the lives of the children since his separation from their Mother in 2002. This is clearly inaccurate, at least in 2006 and 2007, and should have been corrected, if not in the affidavits, at least in submissions by Mr Black. For example, Mr Bale travelled overseas in December 2005 and remained there until August 2006. Similarly, he travelled overseas in January 2007 and remained there until July 2007. Thus, he was absent from the children’s lives for significant blocks of time in the quite recent past. These facts should have been placed before the Court, or at least advised of them in open court.
For all of that, it may be explained in Mr Bale’s defence, and equally so – up to a point – on behalf of Mr Black, that the urgency of the application focussed attention on the recent and most relevant events. While this is understandable, it does not obviate the duty, in ex parte applications, to place before the Court all relevant information, and to ensure that any half-truths and or incomplete facts do not mislead the Court. In my view, the incomplete picture presented to the Court was apt to, and did, mislead the Court regarding the circumstances of the matter, not least in relation to the Father’s involvement in the lives and care of the children.
Another matter arises on the face of the material in Mr Bale’s affidavits. In the affidavit of 7th May, he states (at par.46) that he was advised by Mr Black to keep the children; yet in the affidavit of
12th May, Mr Bale deposes (at pars.8 & 15) that Mr Black advised him that, in the light of recovery orders issued in favour of Ms Stiles, the children were required to return to their Mother. I will not, and need not, explore this further.
These matters lead in to more significant issues regarding the facts of and circumstances surrounding the ex parte application on 15th May.
I need to deal with two aspects: (i) the submissions, and information provided, to the Court on the day of the application; (ii) the proceedings in the Nowra Local Court and the representation of
Ms Stiles.
Submissions to the Court on 15th May
Mr Black’s submissions to the Court on 15th May can be summarised as follows.
He confirmed that it was brought before the Court on an urgent ex parte basis. The urgency was due to the children being injured by the Father (Mr S), he said, and also injuring the Mother (Ms Stiles). He contended that police had become involved and that an AVO had issued against Mr S.
Next, he referred to an affidavit of Ms Stiles which he said he had managed to obtain from the Nowra Local Court. He refers to it in the context of a discussion about the AVO. He suggests that these matters were dealt with on 2nd May. He confirmed that this affidavit, which was faxed to his office on that morning, was the only information he had regarding the Nowra proceedings.
Mr Black then said: “I have attempted to contact … Ms Stiles [the transcript refers to [Ms Sills]] … to find out what is going on….” He continued: “… I have not had any response and neither has my client, in the past week….” Then he states: “So, therefore,… we have not been able to serve any papers on that side and, therefore, we request ex parte orders today.”
In answer to a question from the Bench regarding the whereabouts of the children, Mr Black said: “… we believe the children are down the coast at their mother’s address….”
In the course of the rest of the short time before the Court, Mr Black confirmed that (i) the police had executed a recovery order on 10th May in favour of the Mother, Ms Stiles; (ii) that either on that day, or earlier (on 7th May), the police (and perhaps also Ms Stiles) were advised that papers should be served on Mr Black; (iii) the child [[A]] had threatened to drink a bottle of engine oil in refusing to `being taken away by the Mother;’ (iv) the father, Mr Bale, claimed through
Mr Black, that he did not know what was going on, and that there was no telephone contact between Mr Bale and the children. Mr Black submitted that, in the circumstances outlined, which included also allegations of the child [A] threatening to use a knife (either on himself or others) and allegations of sexually explicit drawings from [A], it was in the best interests of the children to be returned to the Father,
Mr Bale.
It remains only to note that Mr Black confirmed that he did not have a copy of the recovery order from the Nowra Local Court. He said that it appeared to have been executed on 9th May. He said: “This [the recovery order] appears to have been implemented on Friday the 9th of May, after the respondent was clearly told in front of a police officer to serve paperwork on myself. They have then gone and obtained a recovery order in apparently Nowra and they turned up.”
On its face, a number of these statements are rather inconsistent, perhaps most notably the claims that the exact whereabouts of the children were unknown but were believed to be with the Mother down the coast, and that neither Mr Bale nor Mr Black could not get any information about what was going on. Yet the Court was also told that “they” – either the police and or the respondent Mother were also told to serve Mr Black with the papers from the Nowra Local Court.
But what is of much greater moment is what is now known.
On 12th May, Mr Black faxed a letter to Greg Mackey & Associates, solicitors in Sydney for the Mother, Ms Stiles. The letter begins by referring to “recent discussions.” It then confirms Mr Black’s rather more detailed knowledge of the recovery application in Nowra.
He confirms that Mr Mackey appeared on the day of that application and that a recovery order was obtained on 9th May.
In the course of the same letter, Mr Black confirms advice regarding service of all court documents at his office in Wagga Wagga and asks, as a matter of urgency, that he receive a copy of the application for the recovery order. The Court has also received a copy of another letter from Mr Black, which he sent to the Registrar of Nowra Local Court (also dated 12th May), in which he asks that Court to forward to him copies of the documents filed in relation to the recovery application and orders.
In my view, it was incumbent on Mr Black to have informed the Court on 15th May (a) that Ms Stiles was legally represented, (b) of his discussions with her solicitor, Mr Mackey, and (c) that he had written to Mr Mackey on 12th May, and to the Local Court in Nowra. Not to have done so misled the Court. In my view it is extraordinary that an urgent ex parte application was brought before the Court without notifying Ms Stiles’ legal representative of the application, and with whom Mr Black had been in telephone and written contact only a matter of days beforehand. How and why he did not give this notice, let alone opportunity, to Mr Mackey has not been explained. Nor has this omission been explained to the Court.
Added to this is a genuinely strange circumstance. Mr Mackey swore an affidavit on 23rd May (filed on the 26th) in which he attaches a copy of the letter of Mr Black dated 12th May, and deposes to sending to
Mr Black, by email, a letter dated 13th May, which attaches to it, among other things, the Recovery Order of 9th May 2008, two affidavits of
Ms Stiles (both dated 9th May), an affidavit of Mr S (also dated 9th May) and an Application in a Case, of the same date.
The strangenesses are twofold: first, the letter of Mr Mackey has, on its face, a note that it was sent “by facsimile only.” I repeat that
Mr Mackey deposes to sending it by email rather than by fax. Secondly, in correspondence to the Court, Mr Black attaches a facsimile journal for the period from 13th - 16th May, which, he says, indicates that a fax was received from Nowra Local Court on 13th May. In passing, as a matter of formal evidence, it would have been helpful had the large number of papers sent to the Court by Mr Black been put before the Court attached to an affidavit.
In submissions to this Court on 17th June, Mr Black said that he had searched his computer system and could not locate Mr Mackey’s email of 13th May.
At this stage of the proceedings, and given the very large volume of disparate material before the Court, which only confirms that virtually all factual matters remain in dispute, it is impossible to make any findings in relation to any of those matters. I note too that in correspondence, rather than via affidavit, there are copies of at least one apprehended violence order against Mr S in favour of Mr Bale, dated 16th June 2008. At this stage, I do not intend canvassing the range of matters that relate to this, or any other, AVO.
Conclusion
Ultimately, the focus must and properly will be on the orders to be made that are in the children’s best interests. However, for the moment, the essential matter for immediate determination, and for consequential orders, relates to the application to discharge certain of the Orders of 15th May, which were made in Wagga Wagga.
From what has been said already, in my view, the bases upon which they were made were factually flawed. Relevant evidence was with-held from, and incomplete evidence was provided to, the Court. Knowing that Ms Stiles was legally represented, the urgent ex parte application was nonetheless brought without notice to Mr Mackey.
In my view, these matters misled the Court and thereby corrupted the orders that were made. In their current form, they cannot stand.
Accordingly, the orders I make today are as follows.
ORDERS
Order 2 of 15th May 2008 is discharged.
Until further order, the children shall live with their Mother.
To avoid the need to issue a recovery order, the parties are to agree on an appropriate process of returning the children to the care of the Mother.
The parties are to agree on the time the children are to spend with their Father, Mr Bale.
Until further order, the parties, and their partners, are restrained from physically disciplining the children
The parties, and their partners, are not to denigrate the other parent (or their partner) in front of the children or otherwise, and are to use their best endeavours to ensure that no one else does so either.
The parties, and their partners, are not to discuss these proceedings in front of the children or otherwise, and are to use their best endeavours to ensure that no one else does so either.
Without the written consent of the other parent, or order of the Court, the parties, and/or their partners, are not to take the children to see any health care professional or counsellor.
Mr Black is to pay the costs of Ms Stiles, as agreed or taxed, for the hearing on 17th June 2008.
The matter be adjourned to 17 September 2008 at 11.30am.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 1 July 2008
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