Children’s Court throws another book at Mr Donaghy

Mr Donaghy is a sole practitioner in Lismore.

I have written before about magisterial complaints made about him by David Heilpern in David Heilpern throws the book, misses, and throws it again.

That involved an attempt by Magistrate Heilpern to punish Mr Donaghy for his conduct of a matter before the Children’s Court by imposing a personal cost order against him.

Magistrate Susan Duncombe, also sitting in the Children’s Court on the North Coast, has also had a go.

This time the book is Hamlet.

Re “Jim, Hanna and Alana” [2012] NSWChC 15 [2017: access to this decision is now restricted on the internet] involved an abusive and angry man, his battered de facto partner and their (also battered) children. The children had been taken into care and the proceedings involved whether whether (and on what terms) they should be returned to the care of the mother, who had in the meantime repartnered. Mr Donaghy acted for the man, pseudonymised as “Mr Dark.” Mr Dark did not seek return of the children to himself but opposed their return to their mother.

Her Honour allowed herself the following concluding paragraphs:

60 Before turning to the orders that I must make, I have some final comments about the way in which this matter proceeded. Due to the father’s position in respect of the restoration of the children to the mother, there was extensive cross-examination by Mr Donaghy, the representative of the father, of each witness. I note that in submissions Mr Donaghy said four times that this is not about one partner acting out of spite towards a former partner. He said repeatedly that it was about the father’s genuine concerns for the welfare of his children if they were to be returned to the mother. He said that “(t)he focus is on the Director-General’s assessment – not about one parent tearing down another parent. This is about the father’s genuine concerns – his concerns about his daughter rolling around the bed with an unknown male. This is not about tearing down one side”. Later in the submissions he said “This about the Director-General’s assessment. It is not an exercise in tearing one person down against the other – the father is putting this case – the mother has no runs on the board – in relation to the drug use she is still using cannabis in February this year, 8 months after the children were taken”.

61 As Mr Donaghy made these repeated submissions the words of Shakespeare in Hamlet, Act 111, Scene II came to my mind: “The (lady) doth protest too much, methinks”. The fact that this was put in submissions four times, when no-one in submissions had made such an allegation, is indicative in my view of the true motivations of the father. I formed the view that the continuation of these proceedings, and the continued failure to file evidence despite directions to do so on no less than six occasions, was an attempt to continue the power he had over his former partner, the mother of the children. It is fortunate that despite the long history of being overborne by her former partner that the mother has been able, with counselling and other assistance, to begin to distance herself from this power and control. She has come a very long way from the person who was too afraid to seek medical treatment (despite horrendous injuries), too afraid to speak out about criminal activity and her alleged responsibility for it, too afraid to obtain support and counselling and too afraid to leave her partner despite the most horrible abuse. She is to be congratulated and encouraged to continue on the path of recovery in her own interests and of course in the interests of the children.

62 Rather extraordinarily, Mr Donaghy also submitted that “Seriously – if Dr Mellor’s material supported what was in the letter and was put before me in an affidavit – we would not have had a hearing”. That is an incredible submission when the evidence is properly analysed. Dr Mellor’s letter dated 6 January 2011 is included as annexure D of the affidavit of the caseworker filed in October 2011. As I understand it, there is other information provided to Mr Donaghy and his client in the stage 2 documents. The letter from Dr Mellor outlines, briefly, his treatment of the mother on two occasions when she presented with a broken nose to his surgery and on the second occasion, in November 2010, did not follow up treatment (including no follow up for an x-ray and no domestic violence counselling). It is an incredible submission to make in the light of that letter, to somehow suggest that what is in that letter does not speak for itself. If Mr Donaghy’s advice to his client would have been to not contest these proceedings if he had been satisfied that his client had indeed inflicted such injuries on his partner, why was it necessary for Mr Donaghy to wait for the Department to subpoena such records? If that information was so critical then in my view, Mr Donaghy’s obligations to assist this Court in determining the matter expeditiously and without unnecessary adjournments and in a non-adversarial manner, was clear. Had the father ever put on any evidence to suggest that these medical records were in some way erroneous, I am certain that DFaCS would have followed Mr Donaghy’s suggestion that he file an affidavit and/or be called for cross-examination. As it was, the letter remained unchallenged since it was filed in October 2011. Time after time the father was provided with opportunities to put his case to the Court (and to the other parties). Had he once put evidence before the court in which he denied the allegations of domestic violence, perhaps the records of the doctor would have been subpoenaed. As it is, Dr Mellor’s letter stands as unchallenged and credible evidence in support of the mother’s allegations of serious domestic violence perpetrated by her partner upon her prior to the removal of the children.

63 In my view the conduct of these proceedings, since August 2011 when Mr Donaghy has been representing the father, has been delayed unnecessarily by the delays in obtaining instructions, the delays in putting on evidence and the way in which the witnesses were cross-examined in court.

She really took a set against Mr Donaghy and his client, didn’t she?

The perennial concern is the extent to which this involves the advocate being tarred with the same brush as the advocate’s client.

Of course you had to be there, and even then there might be room for more than one interpretation of events.

For example, “Mr Dark” (who chose that name?) was incarcerated in September 2011 which could well have been an impediment to taking instructions and preparing evidence.

Mr Donaghy also had a few other matters on his plate 1, 2 which by their nature don’t necessarily endear him to me.

The opening paragraph of Magistrate Duncombe’s reasons for judgment reveals that her Honour rejected the tender of any evidence at all from Mr Dark.

It is clear that the matter could have been further delayed if evidence of the father, Mr Dark which he sought to file on the first day of the hearing, had been admitted. My reasons for the refusal to admit that evidence are on record. I will not repeat them here.

Given what she is prepared to say about Mr Dark in paragraph 61 without the benefit of any evidence from him, I think those reasons would have borne repetition.

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