Weste & Weste
[2022] FedCFamC1F 174
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Weste & Weste [2022] FedCFamC1F 174
File number(s): BRC 12266 of 2018 Judgment of: HOGAN J Date of judgment: 21 March 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the father seeks that the trial be adjourned – Where the outcome of police investigations are pending – Where the trial has already been adjourned once before – Where an adjournment will enable each of the parties and the Independent Children’s Lawyer to obtain further information – Where it is appropriate that the trial be adjourned. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 21 March 2022 Place: Brisbane Counsel for the Applicant: Ms Frizelle Solicitor for the Applicant: Freedom Law Counsel for the Respondent: Mr Cahill Solicitor for the Respondent: Berck Solicitors Counsel for the Independent Children's Lawyer: Ms Chesterman Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 12266 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WESTE
Applicant
AND: MS WESTE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
21 MARCH 2022
IT IS ORDERED THAT:
1.The final hearing dates of this matter listed for 22, 23, 24 and 25 March 2022 are vacated.
2.The matter is now listed for final hearing for seven (7) days before Justice Hogan commencing at 10.00 am on 7 November 2022, at the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.All parties attend the final hearing of this matter in person.
4.The Independent Children’s Lawyer and the legal representatives for each of the parties have leave to issue any subpoena thought necessary.
5.The Independent Children’s Lawyer has liberty to apply on the giving of 48 hours’ notice in writing.
IT IS NOTED THAT:
A.The Court has today informed the parties that in the event that the matter does not conclude by 4.00 pm on Tuesday 15 November 2022 it is the Court’s intention to sit to conclude the matter on 16 and 17 November 2022.
B.The final hearing of this matter was adjourned today pending the outcome of police investigations.
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 the pseudonym Weste & Weste has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
I have today an application made orally by Counsel who appears for the Applicant father in the proceedings that the trial of it, listed to commence today and to continue for the balance of the week, be adjourned.
That application for adjournment is made in the context of information coming to light as recently as late last week in relation to allegations that the father has been investigated by the Department of Child Safety (the term I shall use to refer to the Department) – as set out in correspondence from the Department dated 17 March 2022 and supplemented by information conveyed by Counsel for the Independent Children’s Lawyer from the bar table.
That supplementary information included the information (at least as it was understood by the Independent Children’s Lawyer, as conveyed by a Departmental officer) that there was the prospect that information associated with the allegations about the father’s behaviour, as mentioned in the second dot point of the paragraph commencing “on 17 March 2022”, on paragraph 4 of the correspondence dated 17 March 2022, had been referred to the Queensland Police Service for their consideration.
The position of the father, insofar as the application for the adjournment is concerned, in a sense, strengthened, because, as a consequence of further investigations being made, helpfully, by the Independent Children’s Lawyer this morning with another officer of the Department the following information was revealed:
(a)the Department had received information about allegations relating to a 17 year old child (as set out at the second dot point of page 4 of the correspondence of 17 March 2022); and
(b)there may be a police investigation in relation to allegations involving X (one of the children the subject of these proceedings) because it appears that an Officer B from the Queensland Police Service had made contact with the Department’s after-hours service over the weekend albeit that, at this stage (12.40 pm today), the Department was unable to assist further in relation to that – other than to advise the Independent Children’s Lawyer that it may appear that there may be an ongoing police investigation in relation to allegations involving X.
That information, in turn, was then supplemented by information provided by Mr Cahill, who appears on behalf of the mother: he outlined his instructions to the effect that Officer B visited the mother on Saturday, 19 March 2022 on an unannounced basis and advised that there was a new investigation in place in relation to allegations involving X – as well as advising, to some extent at least, about allegations in relation to three other children, which, I infer, are those referred to in the Departmental correspondence of 17 March 2022 (albeit that, following her interaction with Officer B, the mother was left unclear about whether a police investigation into those allegations was ongoing or not).
So the position has now been arrived at – following further investigations this morning – that it may be that the father faces investigation by police in relation to allegations involving asserted behaviour by him towards X (a child of these proceedings) and perhaps other children.
It is in all of those circumstances, then, which I have summarised briefly and broadly for the purpose of these very short reasons, that Ms Frizelle, who appears on behalf of the father, applies that the trial be adjourned.
This proceeding has already been adjourned once. It is most unfortunate, therefore, that the application has been made for its additional adjournment this morning. In saying that, I do not intend to convey for a moment that the application is inappropriate or improper. There seems to me to be an understandable basis for the legal representatives for the father asking that this Court adjourn its consideration of those parenting orders which are in the best interests of the children the subject of the proceedings, in circumstances where it is unclear to them whether their client will be the subject of investigation by police; and will be, for example, requested to participate in any interview; and perhaps, in a sense, more importantly, where there is no detail at all before the Court or available to either parent, it seems, about what it is that is, it seems, currently the subject of what has been termed “the new investigation on foot” in relation to allegations involving X.
A further aspect of the information provided today from the bar table by Mr Cahill on instructions from the mother included that, very recently (perhaps on Sunday, 13 March 2022), the mother took both of the children to C Hospital as a consequence of X demonstrating an escalation of “sexualised behaviour”, which is said to have resulted in him placing an object into his sister’s vagina – it was said that such actions caused the mother to decide to take the children to the hospital. That, no doubt, is another aspect of the evidence which will require additional investigation in these proceedings and supplements the difficulties that face not only the father – but, also the mother – in ensuring that this Court has available to it all of the relevant evidence so that a decision about those orders that are in the children’s best interests can properly be made.
It is appropriate that I also record that the position of the mother is to support the adjournment and that the Independent Children’s Lawyer does not oppose the adjournment of the trial. I certainly can understand the position taken by all of the parties and the Independent Children’s Lawyer, given the circumstances and information that has most recently come to light.
Whilst applications for adjournment need to be considered, of course, in the circumstances that arise in each case, as well as taking into account the imposts upon the system (given the comments made in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175), it seems to me that, unfortunately for the parties and the children – because of the consequences of the same on the resolution of these proceedings – the most appropriate, proper and just course is that I make an order adjourning the trial. This will enable each of the parties and the Independent Children’s Lawyer to obtain further information about the matters to which I have already made reference.
I had given consideration to simply standing the matter over until tomorrow morning, so as to enable further investigations and inquiries to be made: however, the information about there being a new investigation on foot in relation to allegations involving X (a child the subject of these proceedings) and the information that the police officer only attended upon the mother as recently as the Saturday just gone suggests to me that it is unlikely that standing over until tomorrow will provide any further particularly useful information, other than, perhaps, further confirmation that a new investigation has started.
For those short reasons, then, I intend to make an order adjourning the trial.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hogan delivered on 21 March 2022. Associate:
Dated: 22 March 2022
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