Stopford Malloy and Malloy (No 2)

[2017] FamCA 489

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY (NO 2) [2017] FamCA 489

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties’ respective applications under Parts VII and VIII of the Act were bifurcated at a previous procedural hearing – Where the mother seeks to have the two aspects of the proceedings consolidated – Concluded consolidation would mean quite considerable delay in determination of the parenting dispute – Concluded the child’s interest are not served by delaying resolution of the parenting dispute – Ordered mother’s application is dismissed

FAMILY LAW – EVIDENCE – Application to adduce – Where the mother seeks to adduce expert evidence from three psychologists and evidence from other witnesses – Where the single expert consulted the psychologists and her expert report attests to the facts and opinions solicited from those psychologists – Leave denied to adduce evidence from the psychologists – Ordered leave is instead granted to the mother to issue subpoenae to the psychologists, requiring them to produce their notes – Leave also denied to adduce evidence from other witnesses

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), ss 69ZN, 69ZP, 69ZQ, 69ZT, 69ZX, 79, 117

Family Law Rules 2004 (Cth), r 15.41

APPLICANT: Ms Stopford Malloy

RESPONDENT: Mr Malloy

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 2595 of 2015

DATE DELIVERED: 19 June 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 19 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGinn

SOLICITOR FOR THE APPLICANT: Piper Alderman

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Howe Jenkin Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1.The parties’ respective applications for parenting orders pursuant to Part VII of the Family Law Act are listed for trial in the Adelaide Registry of the Family Court of Australia at 10:00 am on Monday, 30 October 2017, for a period of five days.

2.The setting down and trial fees shall be paid by the parties in equal shares, within one month of the date of these orders.

3.The applicant mother shall file and serve any Amended Application by Monday, 3 July 2017.

4.The respondent father shall file and serve any Amended Response by Monday, 17 July 2017.

5.The parties shall file and serve the affidavits upon which they rely at trial by Friday, 15 September 2017.

6.Leave is granted to the applicant mother to file and serve one affidavit for each of the following persons:

a.Herself;

b.Dr RR, the child’s paediatrician (provided the evidence is confined to that permitted by Rule 15.41 of the Family Law Rules);

c.Dr SS, the child’s sleep psychologist (provided the evidence is confined to that permitted by Rule 15.41 of the Family Law Rules);

d.Ms TT;

e.Ms UU; and

f.Ms D.

7.Leave is granted to the respondent father to file and serve one affidavit for each of the following persons:

a.Himself;

b.Ms VV; and

c.Dr WW, psychiatrist (provided such evidence is confined to the expression of the expert opinion suggested be obtained by the single expert witness Ms F).

8.The witness relied upon by the Independent Children’s Lawyer will be the single expert Ms F.

9.Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the Court.

10.The Independent Children’s Lawyer shall forthwith notify the single expert Ms F in writing of the trial dates and confirm the availability of the single expert to give evidence on those dates.

11.Leave is granted to the parties and the Independent Children’s Lawyer to issue update subpoenae to any person or entity to whom a subpoena has been issued in the past.

12.Leave is granted to the applicant mother to issue subpoenae to:

a.Dr N, psychologist;

b.Ms O, psychologist;

c.Mr M, psychologist;

d.Dr WW, speech pathologist; and

e.The Proper Officer of the Suburb G Children’s Contact Service and the Adelaide Children’s Contact Service.

13.The parties shall by Wednesday, 25 October 2017 file and serve upon one another, a Case Outline Document containing:

a.Short Summary of Argument; and

b.List of Authorities.

14.If either party should default in the compliance with these orders the other party may, on notice being given to the other, seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

15.Liberty to restore the matter to the list on seven days notice for further procedural directions.

16.The Application in a Case filed by the respondent father on 16 June 2017 is dismissed with no order as to costs.

NOTATION

A.Pursuant to ss 69ZN(4), 69ZP, 69ZQ(1)(a), 69ZX(1), and 69ZX(2) of the Family Law Act, the applicant mother was denied leave to adduce evidence from:

a.Dr N, psychologist;

b.Ms O, psychologist;

c.Mr M, psychologist;

d.Dr WW, speech pathologist; and

e.Any staff member of the Adelaide Children’s Contact Service or Suburb G Children’s Contact Service

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 Stopford Malloy & Malloy (No 2) 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 NEWCASTLE

FILE NUMBER: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

1.Proceedings between the parties were commenced two years ago in July 2015. The parties’ pending applications relate to their only child under Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the alteration of their property interests under Part VIII of the Act.

2.Dawe J made interim orders in respect of the child in October 2015 and August 2016. Presently, the mother has sole parental responsibility for the child, the child lives with the mother, and the child spends supervised time with the father at a contact centre. The child was born in 2014 and is nearly three years of age. The mother contends he was recently diagnosed with a condition on the autism spectrum.

3.A single expert witness (Ms F) was appointed to prepare reports in respect of the family. Her first report is dated 22 May 2016 and her second report, dated 8 June 2017, was released over a week ago.

4.At a procedural event before me on 21 October 2016, the parties’ respective applications under Parts VII and VIII of the Act were bifurcated, because the dispute over the child was much more advanced than the dispute over the parties’ property. The parenting applications under Part VII of the Act were adjourned until today (Monday, 19 June 2017) from that court event in October 2016. At that time, the Independent Children's Lawyer and both parties sought an adjournment of several months duration for the express purpose of preparation of the update single expert report, after the child had spent a few months more of supervised time with the father. It was then expressly noted the Part VIII applications remained in the hands of the Registrar.

5.Today, the applications of the father and Independent Children's Lawyer were for procedural orders to be made listing the parties’ dispute under Part VII of the Act for trial at the earliest opportunity, separately from the Part VIII dispute, which still remains in the resolution phase before a Registrar and still burdened by at least two pending appeals in respect of interlocutory decisions about receivers and subpoenae.

6.Somewhat surprisingly, despite being the applicant, the mother thought otherwise. Her lawyers sought an adjournment of the procedural court event for six weeks, and in any event, opposed the Part VII applications being listed for trial separately from the parties’ Part VIII applications. The mother’s submissions were rejected. The Part VII applications were listed for trial several months hence, separately from the Part VIII applications, and ancillary procedural orders were made to ensure the trial of the parenting dispute deals with the substantive controversial issues in an efficient way. Indeed, that is what Part VII, Division 12A of the Act and Parts 1.2 and 16.2 of the Family Law Rules 2004 (Cth) (“the Rules”) require.

Adjournment

7.The mother sought an adjournment of the procedural hearing for a period of six weeks. It was contended she and her lawyers had not had sufficient time within which to consider the update single expert report, released 11 days ago, or to confer with the father or his lawyers about the evidence needed to address the controversy. 

8.Given these proceedings have been pending for two years, two separate single expert reports have been prepared, and the proceedings were adjourned eight months ago to this date for the express purpose of considering the appointment of a separate trial date for the parenting dispute, the submission that the mother was not ready was unconvincing. Indeed, as the applicant, she presumably started the proceedings because she expected them to be heard and determined in a timely way.

9.The absence of any need for an adjournment was evident from the subsequent comprehensive submissions made by the mother’s lawyers about the residual issues in dispute and the witnesses they wished to call to adduce evidence to address those issues. There was no prejudice to the mother by fixing the parenting dispute for trial about four months hence, rather than adjourning that aspect of the proceedings for only a few weeks to then re-consider exactly the same issues. 

Bifurcation

10.The property dispute between the parties is some way off readiness for a trial date. The Part VIII applications are still in the hands of the Registrar. No conciliation conference has yet been held because of the parties’ jousting over interlocutory issues such as full and frank disclosure, the interim appointment of receivers, and the probity of subpoenae issued to third parties. There have already been numerous interim hearings over those issues, from which two appeals are still pending. Numerous other parties were joined to the interlocutory property disputes and the prospect exists that one or more of those parties will need to be joined as parties to the substantive dispute.

11.Section 79(9) of the Act provides that, absent special circumstances, no property settlement orders can be made until the parties have conciliated that aspect of their dispute before the Registrar. No submissions were directed to the existence of special circumstances so, effectively, the Court is presently precluded from making procedural orders for the property settlement dispute to progress towards trial.

12.The mother’s submission to keep the Part VII and Part VIII applications consolidated would inevitably mean quite considerable delay in the determination of the parenting dispute.

13.The mother argued for re-consolidation of the parenting dispute with the property dispute for several reasons: there was likely some overlap in the evidence; issues about the parties’ credit would overlap; it is unorthodox to bifurcate the two aspects of the dispute; interim parenting orders can be made to quell any controversy on that issue until the delayed trial; and the mother wanted the reprieve of further time to make an application for an order compelling the father to pay her costs of calling certain witnesses in the parenting case. None of those reasons was persuasive. 

14.The mother contended evidence of her alleged “financial oppression” by the father would be germane to both aspects of the case because, under Part VII, it would help vindicate her complaint against the father of his commission of “family violence” within the meaning of s 4AB of the Act. So it might, but there is no tangible prejudice to her having to adduce that same evidence at two separate trials. The procedural evidentiary complication addressed by the mother’s counsel was, in fact, an additional reason to support the existing bifurcation of issues, not their re-consolidation. While evidence would need to meet the strictures of the Evidence Act 1995 (Cth) in the separate property proceedings under Part VIII, the mother would have much greater latitude with her evidence in the parenting proceedings under Part VII (s 69ZT).

15.While it might be the norm to consolidate all aspects of a matrimonial dispute and determine it at one hearing, this case is far from the norm. The intense animosity of the parties, the literal approach to “adversarial” litigious procedure adopted by the lawyers, the delay so far endured, and the costs so far incurred make this a quite extraordinary case. The idea of delaying the final trial of the parenting proceedings and repairing the prejudice of the delay by entertaining another interim hearing verges on preposterous and misconceives the trial process.  Parties should be given the earliest possible trial date for their disputes to be finally determined on tested evidence. It is anathema to frustrate that objective and give the parties repeated opportunities to conduct interim disputes on untested evidence.

16.The suggestion that the parties’ credit transcends both aspects of the dispute is correct, but only to a point. If a party is demonstrated to lack credit in one respect, it does not mean that party lacks credit in all respects. To suggest otherwise is much too superficial an analysis. Modern courts are expected to assess and weigh evidence in a much more thorough and considered manner. The potential issue of credit is not sufficient to require re-consolidation of the parenting and property aspects of the litigation. 

17.The mother’s foreshadowed application for interim orders compelling the father to pay the costs of the witnesses she wants to call in her own case at trial may still be made – novel though it be. I have made an order permitting the proceedings to be re-listed before me on seven days notice. The mother may avail herself of that liberty. If she does, whatever fresh application she chooses to make will be determined on its merits. 

18.There are more compelling reasons to keep both aspects of the case segregated and to list the parenting dispute for trial as soon as possible.

19.First, the parenting dispute is ready for trial and the property dispute is not. The proceedings have been pending for two years and the single expert evidence already procured will go stale unless the parenting dispute is heard promptly. The parenting dispute was split from the property dispute eight months ago for the express purpose of obtaining the update single expert report. There is no reason to delay and then contemplate the need for a third report.

20.Second, an Independent Children's Lawyer is appointed in the parenting dispute, which it was agreed could be contained to five days trial. The property dispute would enlarge any trial enormously, particularly if further parties become joined. It involves many millions of dollars and complex commercial structures. The Independent Children's Lawyer would be idle at considerable cost to the public purse for large portions of a trial if engaged in a trial that also entails a dispute over property. 

21.Third, given bifurcation of the parenting dispute some eight months ago, both the father and Independent Children's Lawyer are eager to push ahead with resolution of the parenting dispute. Their interests, and more importantly, the child’s interests, are not served by delaying resolution of the parenting dispute. 

Witnesses

22.The parties and Independent Children's Lawyer acknowledge that orders will be made for the child to remain living with the mother.

23.The principal issues for resolution are therefore:

(a)The allocation of parental responsibility for the child – the mother wants sole parental responsibility but the father wants equal shared parental responsibility; and

(b)The manner in which the child will spend time and communicate with the father in the future – both parties acknowledge there will be a regime of interaction between them, but they disagree over its style. The mother wants the child supervised with the father until six years of age, while the father envisages an accelerated program of re-introduction from the current supervised visits. 

24.The Act requires the Court to take an interventionist approach to disputes under Part VII. For example:

(a)Section 69ZN(4) requires the Court to actively direct, control and manage the conduct of the proceedings;

(b)Section 69ZP enables the Court to exercise its power under Part VII, Division 12A on its own initiative;

(c)Section 69ZQ(1)(a) obliges the Court to decide which issues require full investigation and hearing and which issues may be disposed of summarily;

(d)Section 69ZX(1) allows the court to make orders about the matters in relation to which the parties are to present evidence, who is to give evidence in relation to remaining issues, how particular evidence is to be given, and the nature of expert evidence that may be called; and

(e)Section 69ZX(2) allows the court to make orders limiting the time for the giving of evidence, that evidence in relation to a particular matter not be presented by a party, and limiting the number of witnesses who are to give evidence in the proceedings.

25.The mother proposed to adduce affidavit evidence from three psychologists (Dr N, Ms O and Mr M), apparently simply because they were consulted by the single expert, Ms F, while preparing her reports. Given the ambit of the parties’ dispute, leave to call those witnesses was refused. The single expert’s reports attest to the facts and opinions solicited by her from those psychologists. Instead, leave was granted to the mother to issue subpoenae to those psychologists, requiring them to produce their notes, which notes will likely be admissible at trial as exhibits if they add to or qualify the contents of the single expert report. 

26.The mother sought to call evidence from Dr WW, but only to corroborate the opinion of Dr RR, the child’s paediatrician. Leave was granted to the mother to call Dr RR, in which event corroborative evidence from Dr WW is unnecessary. The evidence apparently only goes to prove the child’s diagnosis with autism, which is apparently uncontroversial. Dr RR’s evidence should comply with rule 15.41 of the Rules. Otherwise, leave was granted to the mother to issue a subpoena for production of Dr WW’s medical records.

27.The mother sought to call Ms XX and other staff members of the contact centres currently used by the parties and the child. She apparently expected the staff members would collate narratives about their observations of supervised visits between the child and father. Leave was refused, but leave was instead granted to the mother to issue subpoena for the production of the contact centre records. Those contemporaneous notes of supervised visits are likely to be a more reliable source of evidence than the staff members’ memories of events weeks or months before, only refreshed by reading those notes. 

28.The mother was permitted to call evidence from the other witnesses she proposed.

Father’s interim application and costs

29.Today is Monday 19 June 2017. Last Friday (being 16 June 2017) the father filed an Application in a Case seeking revised interim parenting orders. Given the trial of the parenting dispute is now fixed for hearing only four months hence, the father realised the futility of the interim application. It could only be given a hearing date some six to eight weeks ahead, to enable the mother time within which to respond to it, and any orders made at that hearing, even if the Court entertains the application, would only prevail for the remaining eight to ten weeks until trial. Sensibly, the father sought its summary dismissal. 

30.The mother agreed to its dismissal, but only if her costs in relation to it were reserved. Her request for reservation of costs was refused. The Application was only served on her last Friday. She has not filed any Response or affidavit material in support, since the Application has not yet been allocated any return date. The mother intended asking today for about three weeks more within which to file her Response and evidence, but there is now no need.  Even though she may have consulted her lawyers about it on Friday, or even over the weekend, it could only have been to discuss an application to be made today for an adjournment. Her costs would be minimal, in fact, de minimis in the context of this litigation. 

31.The orthodox rule under s 117(1) of the Act should apply. Each party should pay their own costs in respect of the Application. There was no utility in adjourning the costs dispute for another interim hearing because the costs of the argument over costs would then outflank the actual costs incurred in the mother’s consideration of the Application with her lawyers.

32.Those are the reasons for the orders already pronounced. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 June 2017.

Associate:

Date:  13 July 2017