Paper for North Queensland Law Association Conference

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PAPER FOR NORTH QUEENSLAND LAW ASSOCIATION CONFERENCE

TOWNSVILLE 29 MAY 2009

CHILDREN’S MATTERS IN THE FAMILY COURT – THE ROLE FOR THE EFFECTIVE SOLICITOR

In years to come if you have long forgotten the subject of this address I hope you will remember my opening remarks:

“At all times remember your integrity.”

It is appropriate to make a comment such as this in speaking at a conference marking 50 years since the formation of the North Queensland Law Association.

I first came to North Queensland in 1972, practising in Mackay. I have known many fine practitioners in all areas of North Queensland throughout the period since that time who have served their clients and their communities well. I would hope that this tradition will continue in the future and be particularly so in the difficult jurisdiction of family law. I commend to you the many advantages of taking an active role in the affairs of your Association.

Your reputation as a lawyer is your most important asset. Never let it be compromised.

This paper is in part a repeat of a paper I delivered at the North Queensland Law Conference in Cairns in 2007. I will also refer to an L-Plater’s Guide to Children’s Matters in the Family Court which in turn is based on material prepared by my Legal Associate, Tami Grealy, who admits relying on the CCH Family Law Service in preparation of this guide. There are in amongst these pages what I hope are some fresh observations which may prove useful to both the experienced practitioner and the novice.

There have been over 70 amendments to the Family Law Act since its commencement in 1976. The most recent changes include the Superannuation amendments in 2007 and the referral of the de facto property jurisdiction by the States to the Commonwealth this year.

Disclaimer

I appreciate Judicial Officers have varying practices in relation to issues such as the making of consent orders, the granting of adjournments, the joinder of parties and such like. The views I express in these pages are my own. To the extent other Judicial Officers have different practices I intend no criticism of same.

I intend to address the following issues in the course of this paper:

·  dealing with difficult clients – what can you do?;

·  filing consent orders;

·  seeking adjournments;

·  affidavits and annexures;

·  beneficial office practices;

·  briefing Counsel;

·  preparation for the trial.

Dealing with Difficult Clients

When seeing a client in family law matters particularly those involving children it is important to appreciate you are seeing that person at a particularly stressful time in his/her life. Bear in mind that when parties separate in a physical sense it is normally after considerable introspection by at least one of the parties if not both. In many instances one party has crossed the bridge a considerable period of time prior to physical separation. Each party to a separation would normally experience a significant period of grieving with associated expressions of emotions such as anger, guilt, resentment, sadness and such like. At any one time one of these emotions will be dominant although the client may be experiencing signs of all of these emotions in any given day or week.

In most instances the parties will be at different stages of the separation process during the course of negotiations and/or preparation for trial. It is important to bear that in mind when interpreting your client’s instructions. If necessary explain the process to your client. If necessary recommend to your client to seek assistance from reputable psychologists or counselling services. If a client is particularly vulnerable it may be of assistance if the client is agreeable to having a family member or friend also attend the interview.

Your duty is to assist your client to reach the best outcome at a given situation. That duty is subject to your duty to the Court to conduct yourself ethically and lawfully at all times.

If your client wants a totally unrealistic result explain carefully you don’t do miracles.

In this context I recall many years ago a Judicial colleague of mine long since retired made what I regarded as a very cynical observation that most children’s cases are about money. His thesis was that the parties were either seeking a greater slice of the property cake or seeking to pay less child support or had some other agenda with financial consequences.

There are times when I have been all too conscious that the fight over the future of the children has been something of a hidden agenda to other issues. There are some well known examples which a number of practitioners in the room would be only too well aware of that I dealt with over many years whilst serving as a Judge in North Queensland.

It is a feature of litigation at the present time that we regularly see litigants who suffer:

·  personality disorders;

·  drug induced psychosis;

·  other forms of psychosis or mental disorders including bipolar condition;

·  highly anxious litigants who are mistrusting of the system and the legal profession in particular;

·  problems with addiction.

If you have a client who is making your life a misery, who is not accepting of your advice, who is not complying with the undertakings given to the Court, who has an unreasonable expectation of what you may be able to achieve, it may well be time for your client and yourself to part company. You may first enquire if another practitioner in your firm is prepared to take on that client. If no one is willing to take the file on you are entitled to explain to the client your firm will no longer accept instructions. Before taking such a step make sure you have documented the steps which led you to this decision. If you are in a small firm avail yourself of the opportunity to contact a senior counsellor to discuss the course you intend to adopt.

In this jurisdiction expect complaints. It is never a pleasant experience but a not infrequent one. I had one litigant write a letter of complaint about me to the Pope. I never heard whether he received a reply. From time to time I have pondered whether there is a file somewhere in the vaults of the Vatican still in existence.

Filing Consent Orders – Finality of and Regard to Appeal Process

When filing consent orders you must consider the finality of it. Orders made by a Registrar or a State Magistrate are subject to review as of right, that is, “de novo”. There is no need to establish an appealable fault in these circumstances. This encompasses consent orders.

Appeals from decisions of a Court of summary jurisdiction are dealt with by s 96 of the Family Law Act 1975 (Cth) and reviews of Registrar’s orders by Part 18.2 of the Family Law Rules 2004 (Cth). Orders by Registrars and State Magistrates are not final until the time for appeal has expired. It is respectfully commented that the test for extending time in which to appeal is less arduous than the test applied under the terms of s 79A to overturn a consent order made by the Family Court or the Federal Magistrates Court.

Appeals from Federal Magistrates Court

Appeals from Federal Magistrate decisions or decisions of a first instance Family Court matter are dealt with in s 94AAA and 94 respectively.

Section 94AAA states that appeals from the Federal Magistrates Court are by way of a rehearing. However, it is incumbent upon the party to first establish that there is an appealable fault.

In a recent Full Court sitting in Brisbane the Court was informed the appeal had been settled. On the day listed consent orders were produced which provided for the appeal to be allowed and an order be made pursuant to the Federal Costs Proceedings Act granting the parties their respective costs. The consent orders also covered aspects not even in contention before the Federal Magistrate. There was no evidence before the Court on such issues. One particular such order was to the effect that if one party died the other party would automatically have placed in her care the child in the care of the other party.

The Full Court declined to make the consent orders as requested. It was not satisfied the Federal Magistrate was in error. The appeal is still pending and I am unable to make further comment at this point in time. It was within the power of the parties to withdraw the appeal and seek to have the consent orders made by a Registrar.

You need to be aware of the review/appeal process when bringing a matter before a Court or a Registrar. There are three forms of review:

1.  de novo;

2.  by way of rehearing; and

3.  an appeal in the strict sense.

In relation to the appeal by way of rehearing you only reach the rehearing stage if the Court is satisfied there is an appealable error. That issue is determined by the law in place at the time of the decision appealed. If the rehearing stage is reached the law to be applied is that in existence as at the time of the rehearing.

Seeking Adjournments

Adjournments may be requested and much depends on the stage the matter is at. In the interlocutory stages an adjournment may be made by consent, for example where the parties are waiting on expert reports. Such adjournments are likely to be uncontentious.

There are, of course, many opposed adjournments. An adjournment was once requested on the basis of a party suffering a sprained ankle, to which my response was to obtain the aid of some crutches. Another case before me, a party had mesothelioma, and he was given two days to live. He appeared in Court in person, but I had to dismiss the application. The prognosis proved to be correct.

On another occasion a litigant produced a medical certificate certifying she was too ill to attend at Court. In the subsequent discovery process of her bank accounts and credit card documents they revealed she had been on a shopping spree on the adjourned Court date. This had a serious impact on the litigant’s credibility in the final hearing.

Medical Certificates

If an adjournment is sought on medical grounds a medical certificate simply stating a litigant is “unfit for work” is not particularly helpful. You need to contact the medical practice and request that they give a more fulsome explanation of the problem.

When a matter is set down for trial, vacating the dates prior to or on the day of trial is far more difficult. Rule 16.12 relates to vacating trial dates and states:

“16.12 Vacating trial date

(1) A party seeking to vacate a trial date must apply to do so at the earliest possible time before the date fixed for trial.

(2) Both parties must attend the hearing of the application.

(3) A trial may only be vacated:

(a) by order of a Judge or Judicial Registrar; and

(b) in exceptional circumstances.”

It is often the case that a party will request an adjournment as there has been a withdrawal of funding by Legal Aid. In these cases an appeal to the Legal Aid Review Body has been lodged, but not yet determined. As a general rule, only 1% - 5% of appeals to Legal Aid result in the decision being overturned.

Each case, of course, needs to be decided on its merits. Adjournments are more difficult to obtain in the current case management system. If a litigant has been unable to borrow money or raise money to that point in time what are the prospects of them being able to raise sufficient funds in the short term?

Affidavits and Annexures

I have spoken on numerous occasions at conferences, seminars and workshops about the practice of annexing totally useless documents to affidavits. I just do not understand it. Is it a case of saying, “my affidavit is bigger than yours?” Is it a means of charging additional fees?

Is it based on the false belief if an affidavit refers to a document one is duty bound to annexe that document?

Documents I have seen annexed in recent years include:

·  a company prospectus, a document of about 120 pages in length;

·  tax returns;

·  memorandum of association of companies;

·  articles of association of companies;

·  interminable correspondence passing between solicitors (which is usually dull and irrelevant);

·  orders (which are already on the Court file); and

·  affidavits already filed (again which are already on the Court file).

For an overview of appropriate affidavits and annexures in substantive terms please have reference to the L-Plater’s Guide.

Beneficial Office Practices

Every good family lawyer should have a library that contains in digital or hard copy:

·  MIMS – pharmacology manual;

·  DSM-IV – the Psychiatrists diagnostic manual (psychiatrist’s Bible);

·  a medical dictionary;

·  a legal dictionary;

·  a biographical dictionary;

·  a Thesaurus;

·  a short form encyclopaedia;

·  a text on valuation evidence;

·  a good text on evidence.

It is also good practice to operate from a template where boxes can be ticked to ensure that you have covered all aspects of the interview process. You are taking initial instructions, you may be drafting an application or response, drafting letters to your client confirming instructions, drafting a letter to the other side, conducting searches. The need for a template would seem obvious. In addition have a template letter setting out what your firm expects from the client and what the client should expect from the firm.