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Disclosure in an Ex Parte Recovery Application

Recently, a case was handed down remarking a renewed emphasis on a lawyer’s duty in ex parte proceedings, particularly that of candour and frankness.  Ex parte proceedings refer to proceedings where one of the parties may not be present.  The matter of Drew & Jensen [2017] FCCA 656 concerned a recovery application made by the father of two children, aged five and nearly two.

Around 2010, the parties began living together overseas in the mother’s country – but subsequently relocated to live in Australia, where the father was born, in roughly July of 2015.  Their relationship deteriorated in Australia and they separated in January of 2017.  Post separation, the mother took the children to live with her in her country of birth.

The father made an application for recovery of the children in the Local Court, and an order was made for the children to live with him.  In March, the mother commenced family law proceedings for parenting orders of the children in the Federal Circuit Court, asking for the children to live only with her, with the circumstances being that she was escaping family violence by the father and that she held concerns for the children’s welfare.

Interestingly, when the father filed his affidavit material in the Local Court, he indicated that he had two children from a previous relationship, aged 23 and 12 years old, and that he had no relationship with his 12-year old daughter.  The father indicated that the reason for this was that he moved overseas when she was two or three and that he simply didn’t have any contact with her.  In his affidavit material, there is nothing which, at first glance, would have caused concern about the father.

However, the mother asked for his communal history to be subpoenaed from NSW Police, and produced in the Federal Circuit Court proceedings.  The documents revealed that the father had an extensive criminal history between 1978 and 2003 – including (amongst other notable crimes) assault occasioning actual bodily harm, larceny, breach of community service order, stealing, self-administering drugs, possession of a prohibited drug, supply of a prohibited drug, unlicensed driving and break, enter and steal.

After 2003, the only charges against the father concerned an alleged incident involving the mother in Federal Circuit Court proceedings in 2016, with these charges having been dismissed.

The charges and convictions revealed in the material produced under subpoena NSW Police were held by the Court to be in stark contrast with the evidence filed by the father in the Local Court proceedings.  Particularly relevant was the subsequent evidence filed by the father in the Federal Circuit Court proceedings, in which he explicitly denied that he had ever been violent towards the mother in the Federal Circuit Court proceedings, and that he had never been incarcerated.

Of further significance to the Federal Circuit Court case was a charge and conviction for assault occasioning actual bodily harm brought against the father in 2003, arising out of an assault against his former partner – the mother of the daughter that he no longer had a relationship with.  Entries produced under subpoena revealed details of what had occurred during the alleged assault.

The Court placed great emphasis on this charge and conviction not only because it was a violent incident, but due to the nature of the violence perpetrated by the father.  The Court found it relevant to the risk assessment in the matter, given that the father was not only physical with his former partner, but that the assault involved choking and pulling of hair.

The lack of disclosure by the father or his solicitors in the ex parte recovery proceedings before the Local Court led the Federal Circuit Court to examine a party’s duty in the context of a recovery order to the Court, and the significance of that duty.  Referring to the case of Stiles & Bale, his Honour, Judge Altobelli, remarked that in cases where recovery orders are sought:

“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.  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.”

His Honour also remarked that:

“When a party fails to disclose relevant information to the Court in a parenting case, this may reflect adversely on their capacity to provide for the emotional needs of the child [s.60CC(3)(f)] (because of the emotional trauma associated with the recovery, for example) and their attitude to the child and to the responsibility of parenthood [s.60CC(3)(i)].   It is, in any event, certainly a fact or circumstance that a Court might consider relevant [s.60CC(3)(m)].”

Ultimately, the recovery order was discharged and His Honour made orders for the parties to have equal shared parental responsibility for the children, and that the children should live with the mother and spend time with the father each alternate weekend.

The duty of candour and frankness was characterised in this case as not only being borne by the lawyer, but extending to parties themselves.  The candour and frankness of a party to proceedings is also, as indicated in His Honour’s remarks, indicative of the parties’ parenting ability and attitude towards parenting.  It is therefore an important consideration in the making of orders which are in the best interests of a child or children to family law proceedings.

If you have any questions regarding ex parte, or family law proceedings – please don’t hesitate to get in contact with:

Karina Ralston, Senior Associate
Phone: +61 2 9895 9200


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