Family Court: a pasting dished out to lawyers

Family Court: a pasting dished out to lawyers

The Family Court has as its lot the duty to deal with some of the ugliest family law cases. These are cases when allegations of the sexual abuse of a child are raised, and are dealt with in a special list, called the Magellan list.

Family lawyers like me in Magellan cases try to get their hands on as many documents as possible, which will shed some light on whether or not there is some truth to the allegations of sexual abuse. The way we get our hands on documents is typically to have the Family Court issue subpoenas to produce documents. These are sent to people who might have documents that might help: for example child welfare services, police and doctors.

These documents often are the key to the case. To properly prepare a Magellan case, it is essential to issue subpoenas well in advance, inspect the documents and understand them, make further inquiries as a result of the subpoenaed documents (which might entail getting more subpoenas issued), and then once the documents have been obtained, get the documents sorted out as to the most important ones. These can then be bundled up and given to the judge and all the parties. Usually in a Magellan case the independent children’s lawyer attends to this job.

Evidence in Family Court cases is usually given by sworn statements called affidavits. These are usually filed well in advance of the trial so that there isn’t a trial by ambush, and time isn’t wasted at trial having to respond to them.

It is vital in all Family Court cases that before the trial that a case outline is prepared. This document sets out what you want, why you want it and a timeline of significant events, called a chronology. These documents are vital. Judges make orders for these documents to be filed and served. Some judges don’t allow trials to start if case outlines haven’t been done on time.

The parties in the recent Family Court case of Exelmans and Sully were very lucky indeed that their trial started. There were a series of things that ought to have been done which hadn’t been. Justice Bennett set out what went wrong in the trial preparation. All the parties were at fault:

The subpoenaed documents

Both counsel said that they proposed to rely on subpoenaed material. Whilst there is no obligation to prepare a tender bundle or court book, it is usually the most expedient way to introduce documents into evidence so that they are available contemporaneously to a witness, the Court and the practitioners/ parties. It also provides the practitioners with notice of documents to be relied upon by other parties. In this case, the independent children’s lawyer could have coordinated the production of a court book of subpoenaed documents upon which the parties proposed to rely on and/or tender. She did not do so. Nearly a day was lost whilst all parties, including the father, looked through bundles of documents which had been produced to the Court on subpoena well prior to the start of the trial[5]. Counsel for the independent children’s lawyer said that some documents were in her brief. That is indicative of the independent children’s lawyer having seen them prior to the commencement of the trial but does not assist much in the presentation of the case.

In order to expedite the matter, my Court officer arranged for the documents to be made available to the parties for inspection at 8.30 a.m. on the second day of the hearing and the Court copied the court books for the parties. These are matters which parties and practitioners should have attended to well before the commencement of the trial. I am critical of the practitioners for not having done so. Counsel for the mother did not take the opportunity to look at subpoenaed materials early on the second day. By the afternoon of the second day, she said that she had still not read all of the documents. The father’s conduct did not delay the trial in any respect.

The mother’s affidavit

The mother’s affidavit of evidence in chief was not filed until the commencement of the trial. The father did not complain and there was no objection from the independent children’s lawyer. However, faced with such non-compliance, the independent children’s lawyer should have had the matter listed ahead of the sittings for remedial action. 

The case outlines

No party had prepared a case outline at the commencement of the trial, in spite of directions that they do so. On the second day, counsel for the independent children’s lawyer filed a case outline of sorts[6] but it was not particularly helpful. No party prepared a comprehensive or useful chronology. 

The Magellan list

The Magellan list is a judge managed, highly resourced list dedicated to the determination, as expeditiously as possible, of cases involving recent allegations of sexual abuse of children and serious physical abuse of children. Financial constraints affecting many litigants and the Court do not impact on this case. Cases in this list will be allocated an independent children’s lawyer and assistance will not be capped to litigants who are eligible for legal aid. However, litigants and particularly the profession who represent them, are expected to play their part in complying with directions, attending to the inspection of relevant documents and understanding the evidence in the case before the trial commences. The practitioners in this case did not equip themselves well and consequently it took longer to hear than should have been the case.

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