Withers & Russell and Anor

[2020] FamCA 947

FAMILY COURT OF AUSTRALIA

Withers & Russell and Anor [2020] FamCA 947  

File number(s):	CAC223 of 2015
Judgment of:	GILL J
Date of judgment:	16 November 2020
Catchwords:	FAMILY LAW – practice and procedure – non-compliance with filing directions - best interests of the children in conducting child-related proceedings – leave granted to rely upon primary affidavits – application in a case for Family Report writer to conduct an interview with the maternal grandmother and her husband – limited forensic value in undertaking an observation session - potential exposure of children to conflict within the process of litigation - application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 69ZN
Number of paragraphs:	13
Date of hearing:	16 November 2020
Place:	Canberra
Solicitor for the Applicant:	Mazengarb Family Lawyers
Solicitor for the Respondents:	Self-representing
Solicitor for the Third Respondent:	Self-representing
Solicitor for the Independent Children's Lawyer:	Jeanine Lloyd & Associates

ORDERS

CAC223 of 2015

BETWEEN:

MS RUSSELL

Applicant

AND:

MR WITHERS

First Respondent

MS RUSSELL SNR

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	16 NOVEMBER 2020

THE COURT ORDERS THAT:

1.I grant the mother leave to rely upon her primarily affidavit filed out of time, along with the affidavit of Mr QQ filed out of time, and permit her to rely upon the annexures to her primary affidavit, provided those are filed by no later than 4 pm on 18 November 2020.

2.I grant Ms Russell Snr leave to rely upon her primary affidavit filed out of time.

3.I dismiss the Application of Ms Russell Snr in so far as it seeks a further interview with the Family Consultant.

4.On withdrawal of his Applications for Contravention filed by the father on 4 September 2020 and 21 September 2020, those Applications for Contravention are dismissed. 

5.The determination of any issue of costs flowing from the Contravention Applications is reserved to trial.

6.The trial is listed to commence in the Canberra Registry of the Family Court of Australia at 10 am on 22 February 2021 and continue from there through to 3 March 2021. 

7.In this matter Ms Russell seeks leave to rely upon her affidavit directed to be filed strictly in reply by 4 pm on 11 November 2020, where it was not filed until after 6 pm on that day.  Leave is granted to permit Ms Russell to rely upon that affidavit, insofar as it is in reply.

IT IS NOTED THAT

8.Ms Russell Snr has indicated that she does not intend to file material in reply to the father's material.

IT IS FURTHER ORDERED THAT

9.The parties are granted leave to approach the Registry Manager at the Canberra Registry of the Family Court of Australia to view CCTV footage taken on 1 September 2020 between 11:45 am and 12:45 pm in the public areas of the Family Court of Australia for the purpose of seeing what that footage depicts in respect of B, A and the parties and the conduct of the Family Report and are granted permission by the Court to do so. 

10.The mother is obliged to provide to the father notice in writing of her intention to leave Australia 14 days prior to any departure and of her intention to return to Australia 14 days prior to such return. 

IT IS NOTED THAT

11.This direction is given in order to assist in there being planning and certainty as to what the arrangements for the children will be in respect of who they will spend time with, which is predicated upon the mother's presence in Australia. 

IT IS FURTHER ORDERED THAT

12.The matter is further adjourned for further directions to 10 am on 4 February 2021 on which occasion the matter will be an in-person appearance.

13.Unless a party has otherwise sought relief from the Court the trial listed for February 2021 is to be an in-person appearance. 

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. In this matter, there are applications by Ms Russell Snr and Ms Russell to rely upon material that has been filed outside of the directions that were made in July 2020 for the filing of material for the trial of this matter.  Those directions were made well in advance of any filing deadlines, the deadlines commencing on 30 September 2020.  They were filing arrangements that were designed to ensure that each of the parties was accorded procedural fairness in the preparation of the matter for trial. 

2. I note that the filing timetable has been put in place prior to there being an allocation of trial date for this matter. 

3. The father in the proceedings complains as to the acknowledged non-compliance with those filing deadlines by each of the maternal grandmother and the mother.  Each of those parties now seeks leave to rely upon material filed outside of the deadline.  It should be observed that, in relation to the substantive affidavit material sought to be relied upon by Ms Russell, being herself and her partner Mr QQ, and that of Ms Russell Snr, were filed within approximately a week from the allocated deadline.  That thereby compressed the time available for Mr Withers to produce his material.  His material has addressed the material filed by the mother he identifies, as best as he has been able to, notwithstanding the compression of that time. 

4. The greater prejudice suffered by Mr Withers, it seems, has been in the non-filing of the annexures associated with the material relied upon by Ms Russell.  That is material that has still not been filed nor served.  He correctly points to a procedural unfairness arising in respect of this, as he has now filed his responsive material and the mother has now filed her material in reply.  Without understanding how it can be so, the annexures have still not been filed or served on Mr Withers from the proposed primary affidavit of Ms Russell.  The father rightly points to the fact that he has now been forced to answer matters that are referenced in the annexed material, without the benefit of that annexed material, and that should the mother now be permitted to rely upon that annexed material, he faces a fresh round potentially of preparing material to answer. He is correct to describe that this visits an unfairness upon him if it is permitted to take place. 

5. However, notwithstanding the unfairness that it visits upon him, I intend to grant the mother leave to file that material and both the maternal grandmother and the mother to rely upon the affidavits that they have filed out of time.  The key reason for this is the focus that I am to have in child-related proceedings on managing the proceedings, which is what is being considered at present, in the context of non-compliance, but in turning my eye to the best interests of the children in conducting the proceedings. 

6. It is important that the proper evidence is available for the trial of this matter.  It is important that the proper evidence can be made available in a procedurally fair manner so that I may determine what orders are in the best interests of the children.  I acknowledge that an unfairness is visited upon Mr Withers if there is an order permitting the filing out of time and intend to cure that as best as it can be cured by permitting him to file further material.  In doing so, I acknowledge that even that works an unfairness upon Mr Withers because he is put to yet another task of answering material having already gone through the task compliant with the orders that I have made of already answering the mother’s and the maternal grandmother's material.  It must appear quite unfair to him that he has complied with the procedural directions only to now see the mother and the maternal grandmother excused from their non-compliance.  However, it is the necessity to ensure, as best as I can, that the proper material is before me for trial that leads me to visit that degree of unfairness upon Mr Withers. 

7. Accordingly, I grant the mother leave to rely upon her primary affidavit filed out of time, along with the affidavit of Mr QQ filed out of time, and permit her to rely upon the annexures to her primary affidavit, provided those are filed by no later than 4 pm on 18 November 2020.

8. I grant Ms Russell Snr leave to rely upon her primary affidavit filed out of time.

9. In the event that Mr Withers deems it necessary to file further material to respond by virtue of these directions, in particular by virtue of the affidavits being filed out of time and the annexures being filed out of time, then he is permitted to file a single consolidated affidavit with the associated documents annexed to that affidavit, paginated and preceded by an index, provided such is filed by no later than 4 pm on 22 January 2021. 

   Application in a Case filed 12 November 2020 by Ms Russell Snr

10. In this matter, the maternal grandmother, Ms Russell Snr, has made an application in a case for the court to direct the Family Report writer, Ms BD, to conduct a further session in the matter in which the maternal grandmother and her husband are observed with A and B.  That Application comes in the context that there is now a finalised Family Report from Ms BD, but in the further context that Ms BD had initially arranged for such a session to take place, such session being thwarted about by the circumstances of the day, which saw B reportedly become highly upset and unable to take part in the further assessment under those circumstances.  That led to Ms BD not going ahead with the observation session between B, A, the maternal grandmother and her husband.  As noted, the maternal grandmother now seeks that I make orders for such a session to take place.  Ms BD has already commented upon the potential limitations in the report and the assessment process at page 4 of that report that stem from the failure to observe B and A with the maternal grandmother and her husband, but also notes a relevant risk associated with such now taking place based upon her observations of B and his level of distress, amongst other matters.

11. It should be observed that it seems not to be seriously in dispute, although there may be disputes around the margins, but that the children both enjoy a positive relationship with the maternal grandmother and her husband.  They described as much, at least in a limited sense in what it was that they had to say to Ms BD in the report.  Further, this is not a case in which the maternal grandmother seeks that either B or A live with her.  The Family Report writer considered that the assessment that she was able to make, even without the observation of B and A with the maternal grandmother and her husband were sufficient.  The question then arises to what end should there be further assessment.  Any further assessment carries with it a risk as identified by Ms BD that the children are again brought into the focus of the dispute and the conflict between the three parties in these proceedings. 

12. In making a determination in relation to this matter I am obliged to take into account the principles contained at Division 12A of the Family Law Act 1975 (Cth) as they deal with child-related proceedings. I need not repeat them, but the principles are recited as principles 1 through 5 at s 69ZN.

13. In this case it is the first of the principles that is determinative.  I am to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.  One of the needs of each of the children is the need for material which assists me to assess what is in their best interests to make a determination of that matter at trial.  Noting what is or is not in dispute in relation to the maternal grandmother calls seriously into question the benefits in terms of making that assessment of going through a further assessment process with the Family Report.  What outweighs that is the impact of the conduct of the proceedings in directing a further portion of the report.  At paragraph 95 of the Family Report, the matters outlined by the Family Report writer include the potential exposure to the acute impact of conflict on B, as observed in B's high level of distress during the previous assessment by the Family Report writer.  Here, my assessment is that where it is non-contentious, or at least in the main non-contentious, there is a positive relationship between A and B and the maternal grandmother and her husband, where the facts in issue in this do not include a determination of A and B living with the maternal grandmother or her husband, that there is limited forensic value in undertaking an observation session which is not sufficient to justify the potential exposure to conflict within the process of litigation and the consequential impacts upon A and B of so doing, I dismiss the application of Ms Russell Snr insofar as it seeks a further interview with the Family Consultant.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       17 November 2020