A Focus on Family Law Launceston 19 October 2023
FAMILY LAW ACT 1975 FEDERAL CIRCUIT AND
FILE NO: LNC 67524/2023
FAMILY COURT OF AUSTRALIA (Division 2)
BETWEEN Thomas Simmons CASEY
(Applicant)
AND: Susie Lucy EVANS
(First Respondent)
AND: Daniel Towitt BROWN
(Second Respondent)
FACTS for MOCK INTERIM HEARING
1.
This is an interim parenting matter before Justice Michael Trezise.
2.
The subject child is LOUISA CASEY aged 13 years.
3.
The applicant is Louisa’s father, TOM CASEY. Mr Verney of Counsel will appear for him at the interim hearing.
4.
The first respondent is Louisa’s mother, Susie Evans. Ms Evans has been served, she has not filed any Notice of Address for Service or filed any material.
5.
The second respondent is Louisa’s maternal grandfather, DAN BROWN. Ms Ryan of Counsel will appear for him at the interim hearing.
6.
Louisa has maternal half-siblings, EMILY aged 10, JESSIE aged 8 and KRYSTAL aged 3.
7.
Louisa was some years ago the subject of a care and protection order. At various times Louisa has lived with her mother and lived with her father.
8.
Emily, Jessie and Krystal live with their father, JONATHON SWIFT. They have been subject of child safety interventions and have been administratively placed with their father by child safety.
9.
Louisa was in the care of Mr Casey prior to his filing the application. He agreed to her having long weekend contact with her maternal great grandmother, LEONE
EVANS, sent her on a holiday to stay in Adelaide, South Australia, with Mr Brown and Mr Brown retained Louisa in his care. 10.
Both Louisa’s parents have a history of drug abuse. The father has been incarcerated for crimes connected to drugs. In recent years the father has successfully abstained, at least from intravenous illicit substances. He has been employed full-time for the last 2 years or more.
11.
There are also historic allegations of family violence between the mother and the father; they are significant in nature.
12.
The mother has continued to use illicit substances, and has allowed persons who, objectively, would place her children at risk by spending time at her home. She has formed relationships with inappropriate people, exposing the children to family violence and drug use.
Previous proceedings 13.
Five years ago, Louisa was living with her mother and spending time with her father. The father retained Louisa in his care, with the full knowledge and tacit approval of Child Safety Services. Louisa’s younger siblings became subjects of care and protections orders.
14.
Child Safety Services intervened in respect of the younger half-siblings. Emily and Jessie were placed with their father and Krystal being placed in foster care. CSS supported Louisa remaining in the care of her father.
15.
The mother filed a recovery order application. The father then filed a response seeking orders that Louisa live with him on both an interim and final orders basis.
16.
An interim order was made for Louisa to live with him in the months that followed.
17.
Louisa had displayed significant trauma behaviours (at home & at school), thought to be as a result of the drug abuse and family violence Louisa was exposed to by each of her parents and her mother’s subsequent associates and partners. Louisa had great difficulty regulating her emotions and was receiving counselling from the Australian Childhood Foundation (ACF) for a period of two years.
18.
Louisa began regularly attending school, although a problem developed in that she would, without warning, run away from school and walk to her mother’s home many kilometres away. Louisa had a strong attachment to her mother, although she was conflicted because of the neglect.
2
19.
In 2020 Louisa ran away from school and the police were trying to find her. It transpired she had become lost and was driven to her mother’s home by a complete stranger.
20.
Regular team meetings were held at the school to discuss Louisa’s welfare and development. CSS attended, as did Louisa’s ACF counsellor, school social worker, teacher and school principal. Mr Casey attended when his work permitted. Ms Evans had little to do with the school and did not attend these team meetings.
21.
Both parents were given psychoeducation re affects of drug abuse and FV on children. The father engaged well; the mother engaged less enthusiastically, but nonetheless Ms Evans eventually covered all points with the counsellor.
22.
Ms Evans was unreliable in her spend time with Louisa. Mr Casey and Mr Swift coordinated contact for Louisa with the half-siblings on a reasonably regular basis. Emily and Jessie were placed on a twelve-month care and protection order in 2020. Krystal returned to the mother’s care.
23.
In February 2021 final orders were made that Louisa live with Mr Casey and spend each alternate weekend with Ms Evans. Various protective injunctions were made.
24.
At the time of final orders in February 2021 Mr Casey was residing with the paternal grandmother and had been for some time. It was observed by the Court expert that this offered Louisa additional protection.
25.
In the last eighteen months the father has formed a new relationship with Ms Spot; they live together (Mr Casey having moved out of his mother’s home 12 months after the final Orders were made). Ms Spot gave birth to a healthy baby in September 2023.
26.
By 2023 Louisa had moved to live with her mother full-time and spent ad hoc time with her father. It would appear the father reluctantly acquiesced with that.
27.
Emily, Jessie and Krystal returned to the mother’s care and their care and protection orders lapsed.
28.
In late April 2023 Mr Casey received a phone call from Louisa asking him to come and collect her, she indicated she wished to live with him. Mr Casey collected Louisa.
29.
Child Safety placed Emily, Jessie and Krystal back with Mr Swift. At that time there were various indicators of neglect in Ms Evan’s household – the same risk issues that had been present before the last intervention. Louisa made various disclosures, which can be summarised as •
she and her half-siblings were being neglected;
•
they were exposure to drug use; and
3
•
Louisa was very stressed by the responsibility she felt to care for and protect her younger siblings.
30.
Louisa was attending the local high school to the father’s residence and is in Grade 7.
31.
Mr Casey is attempting to get Brooklyn up the waiting list to reengage with ACF.
Current proceedings 32.
Mr Casey arranged for Louisa to spend time with her maternal great grandmother, Leone Evans, for the long weekend and to be dropped at school following that. In the days that followed changeover Mr Casey became aware that Louisa was actually in Adelaide, South Australia, living in South Australia with her maternal grandfather, Dan Brown.
33.
Louisa knows her maternal grandfather but has not seen him for four years. He has lived in South Australia since 2016. His relationship with his own daughter, Ms Evans, is extremely fraught.
34.
Ms Evans does not support the move to South Australia, she wants Louisa to be returned to Tasmania.
35.
Mr Casey instructed lawyers who wrote to Mr Brown, but he refused to return Louisa to the father’s care. It was alleged that Louisa had told Leone Evans and Mr Brown that : •
Her father smoked marijuana in her presence and
•
Ms Spot had said to Louisa she would need to sleep in the loungeroom to make room for the new baby.
Mr Casey denies both these allegations. He says he smokes cigarettes outside, but not marijuana. 36.
The father has no idea of Mr Brown’s address in South Australia.
37.
On 6 July 2023, Mr Casey filed his initiating application, seeking an urgent recovery order requiring Louisa to be returned to Tasmania and served the papers on Mr Brown’s lawyers. While that application was served on the mother, the mother has not filed a response and is not participating.
38.
Mr Brown is in his mid-fifties and is self employed as a carpenter. He has a partner, MAREE NICE, who is a similar age and is employed full-time as a social worker. Mr Brown has a history of ICE and alcohol abuse and deposed he has not used illicit substances since 2007.
4
39.
Mr Brown and Ms Nice contend Louisa has repeatedly told them she does not wish to live with her mother, nor does she wish to live with her father; she says she wants to live with Mr Brown & Ms Nice in Adelaide and attend school there.
40.
The disclosures Mr Brown deposes Louisa made to he and his partner include :•
The father smokes marijuana daily from a bong;
•
Louisa is left at home at night on her own;
•
Her father prioritises his relationship with Ms Spot over her;
•
Her father does not participate in her school life;
•
Louisa is only allowed to have a shower every two days;
•
Her Father and Ms Spot do not turn the heater on because of the cost;
•
Louisa is scared of driving with her father because of his reckless manner of driving;
•
Louisa showed them scars from her self-harming;
•
Her father has used the word “bitch” to her and has called her lazy.
•
She learnt her father was engaged to Ms Spot via his Facebook post.
•
Louisa does not like the area the father lives in because it is of a lowersocioeconomic demographic.
41.
Mr Brown and Ms Nice are Jehovah Witnesses. They reside in an area of Adelaide which has a high proportion of Jehovah Witnesses living within it and where the Adelaide Kingdom Jall is based. It is proposed that Louisa be enrolled in a Christian School, nearby where many Jehovah Witnesses send their children to school – called Nearby College.
42.
Mr Brown and Ms Nice also propose Louisa engage in counselling with someone they know.
43.
Mr Casey and his family identify as aboriginal, and aboriginal culture is an integral part of his life.
44.
Mr Casey deposes Louisa continues to have difficulties regulating her emotions.
45.
Mr Casey annexes to his affidavit many pleasant and natural text interactions with Louisa before and after her move to Adelaide.
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46.
Mr Casey has refused to provide a copy of Louisa’s Medicare card or birth certificate to Mr Brown; nor has he permitted Louisa to be enrolled in school in SA.
Section 69ZW Reports 47.
When the application was filed, the judicial registrar made a number of procedural orders. These included Orders for section 69ZW reports form Child Safety Services and Tasmania Police.
48.
Child Safety S 69ZW report indicated no current concerns for Louisa in the father’s care. It confirmed the historic family violence and drug use of both parents – in addition to the motehr’s more recent neglect, use of substances and exposing the children to family violence.
49.
Tasmania Police s69ZW report outlined : •
In respect of Mr Casey o Conviction for armed robbery in 2017 and served 18 months in prison. o He has convictions for possesses prohibited substances in 2015 and 2016 which were dealt with at the same time. o He has been convicted of assaulting Ms Evans in 2014.
•
In respect of Ms Evans o Several conviction for possession of prohibited substances o She has been convicted of assaulting Mr Casey
•
There have been 6 FVO or PFVO between Mr Casey and Ms Evans. 2 in which Ms Evans was the perpetrator, 3 in which Mr Casey is the perpetrator and one recorded for information only, neither party is listed as a victim of perpetrator.
•
In respect of Mr Brown there are very historic conditions for assault going back to 2012.
Court Child Expert 50.
The hearing adjourned in August to allow the court child expert to speak to Louisa to ascertain her wishes. Louisa has told the court child expert : Living Wishes
51.
Louisa was very firm that she wished to “to stay here” – with Mr Brown and his partner. She calls Mr Brown “Pop” and his partner “Nan”.
52.
Louise says it is because
6
•
“I was living with my Mum, and she was not always ‘abusive’ abusive – she was more like mentally abusive”. “I won’t live with Mum”.
•
“Dad’s girlfriend doesn’t like me and he [Dad] kind of scares me”. She didn’t know how or why her Dad scared her; it was too hard to explain. But she did say “When he gets mad, he’s really not very good at controlling his anger”.
•
She liked Adelaide because “Me and Nan get along and my Pop’s been really supportive of me during everything”.
•
“I just wants to stay up here”.
Contact with Dad 53.
Louisa said she’d like to come to Tasmania during the next school holiday period, but “I only want to see some people though”. Louisa said she mainly did not want to her Mum.
54.
Louisa said she wouldn’t stay with her father, but she’d see him. She said she would stay with her Nan, meaning her great maternal grandmother referred to as “Nanny Red”, Leone Evans.
55.
Louisa felt some work needed to be done for she and her father to get on better. She said, “he’s never reached out to me”. Louisa felt she needed support to her father how she was feeling because she is scared to do so.
56.
Louisa later said “we [Dad and Louisa] get along” and then went on to talk about her earlier life, when Mr Casey was not prominent in her life, and she said he “popped up when I was in Grade 2” and she then lived with him. She said he was taking drugs and lied to her about it.
57.
Louisa spoke about feeling like she was “kind of being replaced” by the father’s fiancé having a baby. Despite this Louisa said she would enjoy seeing the baby when she comes to Tasmania during school holidays.
58.
Louisa said her one worry was returning to Tasmania. Counselling for Louisa
59.
Louisa said she would cooperate with counselling from a psychologist. She said it would be helpful if that person helped her talk to Dad, but she added she “still wouldn’t live with him”.
60.
Louisa says she is worried about her younger maternal half-siblings.
61.
She says she didn’t like her school in Hobart.
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62.
Louisa said she needed help to talk about her feelings generally and a psychologist may help with that.
63.
The new interim hearing date is in October 2023 in Launceston. Mr Verney and Mr Casey will be at the Launceston registry. Mr Brown and his Counsel will appear via Teams from Adelaide.
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FAMILY LAW ACT 1975 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (Division 2) BETWEEN AND: AND:
FILE NO: LNC 67524/2023
Thomas Simmons CASEY Susie Lucy EVANS Daniel Towitt BROWN
(Applicant) (First Respondent) (Second Respondent)
UNTIL FURTHER ORDER: Parental Responsibility 1.
That all previous orders are hereby discharged.
2.
That the applicant, THOMAS CASEY (the father) and second named respondent maternal grandfather, DAN BROWN, (the maternal grandfather), have equal shared parental responsibility for the child, LOUISA CASEY, born on 24 June 2010 (“Louisa”).
3.
4.
That in respect of parental responsibility: (a)
The maternal grandfather will promote the father’s relationship with Louisa;
(b)
The maternal grandfather will ensure compliance with the spend time Orders;
That Louisa will forthwith be enrolled and remain enrolled at Nearby College in South Australia unless agreed otherwise in writing with the father.
Live with, spend time and communicate with Orders 5.
That Louisa live with the maternal grandfather.
6.
That Louisa will spend time with the father in Tasmania as follows, and subject to the following conditions: (a)
During the summer school holiday period commencing in December 2023, on such times and days as may be agreed and failing agreement:
1
(b)
For a period of *** consecutive days from 18 December 2023 between 10 and 7 pm and
(c)
For a further period of *** consecutive nights on dates agreed and failing agreement this period will end on Friday 27 January 2023 with Louisa travelling back to Adelaide that day.
(d)
Should Louisa elect to she may spend overnight time with the father as well in the summer holidays commencing December 2023; otherwise Louisa will stay with her maternal great grandmother, LEONE EVANS, overnight while in Tasmania during that holiday period.
(e)
In the event Ms Loene Evans is unavailable to have Louisa stay with her, Louisa will stay with such other adult - as agreed in writing between the father and the maternal grandfather and it is noted that agreement may include staying with the father.
(f)
During the Term 1 school holiday period in 2024, for a period of *** consecutive nights, on such times and days as may be agreed and failing agreement from Sunday ** April;
(g)
During the Term 2, 2024 school holiday period for *** consecutive nights;
(h)
By attending Tasmanian aboriginal community events that offer electronic attendance, provided the father has given not less than four (4) days written notice to the maternal grandfather of the event and the event falls outside school hours;
(i)
Communication between Louisa and the father will be via electronic means, emails, text, social media, telephone – initiated by either of them between reasonable hours.
(j)
Such other or alternate spend time as may be agreed between the father and the first named respondent.
7.
That Louisa is at liberty to communicate in accordance with her wishes with the second named respondent mother, SUSIE EVANS (“the mother”).
8.
That in the event Louisa expresses a wish to spend time with the mother, it will be supervised by an adult agreed between the mother, the father and the maternal grandfather.
9.
That when Louisa travels to Tasmania in accordance with these Orders, she will least once each period spend time with her half siblings, as agreed with Jonathon Swift their father. 2
Louisa air travel to spend time 10.
That both legs of Louisa’s travel for the first period spend time in the summer holidays commencing December 20223 will be paid by the maternal grandfather.
11.
That thereafter, the parties will share the costs of Louisa’s travel to and from Adelaide for school holidays, with the father to book and pay for Louisa’s airfares for the journey from Adelaide to Launceston and the maternal grandfather paying Louisa’s airfare from Launceston to Adelaide.
12.
That for the purpose of paragraphs 10 to 12 above, at least fourteen (14) days prior to each flight, Louisa’s flights will be booked and confirmation of the booking, including the flight details, a copy of the tickets and departure and arrival times will be provided to the other party.
13.
That unless otherwise agreed in writing between the father and the maternal grandfather, Louisa will fly as an unaccompanied minor to and from Launceston.
14.
Louisa will be met at the arrival gate in Launceston by the maternal great grandmother, Leone Evans, and or her agent (provided such agent is known to Louisa), with the father to have liberty to attend unless Louisa objects.
15.
That Louisa will be met at the arrival gate in Adelaide on her return by Ms Nice or the maternal grandfather, or his agent (provided such agent is known to Louisa).
16.
That the venue for changeovers of care in Launceston will be as agreed by exchange of text message between he father and Loene Evans and failing agreement at Launceston McDonald’s Restaurant.
Injunctions and Responsibilities 17.
That within seven (7) days of any change to the parties’ residential address, email address and mobile telephone number they will inform the other parties in writing of the new details.
18.
That within seven (7) days of being requested to by the Registry of Births, Deaths & Marriages in Tasmania, the father will authorise the release of Louisa’s birth certificate, to the maternal grandfather, signing all such paperwork required to do so.
3
19.
That the maternal grandfather will cause Louisa to attend on a general medical practitioner for the purpose of obtaining a mental health plan, and to facilitate this the father will forthwith provide the maternal grandfather with a photocopy of Louisa’s Medicare card.
20.
That both the father and the maternal grandfather will engage a clinical psychologist, or such other suitably qualified psychologist/counsellor, (Louisa’s psychologist) agreed between them, to work towards improving Louisa’s relationship with the father.
21.
For the purpose of the preceding paragraph, the father and the maternal grandfather will action and observe the recommendations of Louisa’s psychologist, including but not limited to making Louisa and themselves available to attend appointments with Louisa’s psychologist (for such duration and frequency as requested by Louisa’s psychologist).
22.
That any costs of Louisa’s attendance on her psychologist not covered by the mental health plan will be met equally by the father and the maternal grandfather .
23.
That if requested to attend on Louisa’s psychologist individually, the maternal grandfather and the father will pay their own costs of such attendances.
24.
That the parties are each at liberty to provide Louisa’s psychologist with copies of their affidavits.
25.
That all parties are at liberty to request they be provided with, at their own expense, copies of school photographs, Louisa’s school reports, the school newsletter/bulletin, school notices and other such material from Louisa’s school.
26.
That pursuant to Section 68B of the Family Law Act and for the protection of the parties and Louisa, the parties will at all times use civil and respectful language when communicating with each other and are hereby restrained from: (a)
Speaking critically, abusively, belittlingly, negatively or rudely about the other parties - or that party’s partner and family - to Louisa or within Louisa’s hearing.
(b)
Discussing these proceedings and the allegations raised in the presence or hearing of Louisa.
(c)
Subjecting Louisa to any form of family violence and in the event of Louisa is exposed to family violence the party with care of her will immediately remove Louisa from that violence. 4
27.
That pursuant to Section 68B of the Family Law Act and for the protection of Louisa, while Louisa is in his or her care no party will consume alcohol to the extent they are so affected by alcohol as to have impaired ability to supervise or protect Louisa.
28.
That pursuant to Section 68B of the Family Law Act and for the protection of Louisa, while Louisa is in his or her care no party will consume any illicit substance, or any medication not prescribed for them, nor will they do so for the twelve (12) hours prior to Louisa coming into their care or allow Louisa to remain in the presence of any third party doing so.
29.
The father is hereby restrained by injunction from driving or operating a motor vehicle at any time, while Louisa is in the car.
30.
That unless they have already done so, within 14 days of the date of these orders, the maternal grandfather will notify the father in writing of the optometry practice Louisa is attending (S.A. optometrist) and the general medical practice he intends Louisa to attend (S.A. GP practice).
31.
That within 14 days of receipt of the information pursuant to Order 30 above, the father will do what, if anything, is required of him to cause Louisa’s optometry notes and general practice medical records to be transferred from any general medical practice that to his knowledge Louisa has attended in the last five years to the S.A. GP practice and S.A. optometrist.
32.
That any costs connected with the transfer of medical notes to the S.A. GP practice or S.A. optometrist will be shared equally by the father and the maternal grandfather.
33.
That in the event the Education Department of Tasmania (DoE) requires the father to authorise the provision of their records in respect of Louisa, to Nearby College, the father will provide written authority within 48 hours of being requested to do so by the DoE; the parties will not otherwise be involved in the transfer of information between DoE and Nearby College.
34.
That subject to any practice policies, all parties are each at liberty to communicate with any professionals, including but not limited to doctors, school staff and counsellors that have been or are providing services to Louisa and in the event any of the parties are asked to authorise such communication with any other party to these proceedings, they will do so within 24 hours.
5
35.
That if Louisa suffers any significant injury or illness or threat to her welfare, the party with care of Louisa will inform the other parties without delay of the nature of the event and the name and address of any health professional to whom Louisa has been referred and, in the event of an emergency the party with care of Louisa will notify the other party immediately by telephone.
36.
That the father and the maternal grandfather are to communicate by email and text message in relation to the care, welfare and health of Louisa.
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1.
The Court allocate, as required by section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) a base amount of $# to the Applicant out of the interest of the Respondent in his superannuation plan with SUPERANNUATION FUND (member number #).
2.
Pursuant
to
section
90XT(1)(a)
of
the
Act,
whenever
the
Trustee
of
SUPERANNUATION FUND makes a splitable payment under the Respondent’s interest in the superannuation fund with SUPERANNUATION FUND (member number #) the Trustee will:(a)
Pay to the Applicant or her legal personal representative the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulation 2001; and
(b)
Make a corresponding reduction in the entitlement that the Applicant would have had in his superannuation fund with SUPERANNUATION FUND (member number #) but for this Order.
3.
That the operative time is the expiration of four working days from the service of the certified copy of this Order on the Trustee of SUPERANNUATION FUND (member number #).
Draft Orders for split of self-manage Superannuation Funds (1)
The husband in his personal capacity and in his capacity as director of the Trustee of the Mr *** Superannuation Fund hereby acknowledges procedural fairness in respect of the superannuation split contained in these orders.
(2)
Paragraphs 2 to 5 have effect from the operative time.
(3)
The operative time for the purpose of paragraph 2 is 30 days from the date of these orders (“the Date”).
(4)
In accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth) on the Date: (a)
whenever a splittable payment becomes payable to the wife from the Mr *** Superannuation Fund, the wife is entitled to be paid the amount of Y, where Y is calculated as follows: (i)
(ii)
Y is 35% of X, less Z; •
(A) X is the total combined value of the Mr *** Superannuation Fund and the Ms *** Superannuation Fund as at the Date including but not limited to:
•
(B) the value of the shares in the Ms *** Superannuation Fund as at the Date;
•
(C) cash in the Ms *** Superannuation Fund as at the Date;
•
(D) other assets of the Ms *** Superannuation Fund including loans owed to the fund, managed investments and derivate investments;
•
(E) the value of the shares in the Mr *** Superannuation Fund as at the Date;
•
(F) cash in the Mr *** Superannuation Fund as at the Date plus an additional $***,000;
Z is the total value of the Ms *** Superannuation Fund as at the Date which includes: •
(A) the value of the shares in the Ms *** Superannuation Fund as at the Date;
•
(B) cash in the Ms *** Superannuation Fund as at the Date –
•
(C) all other assets of the Ms *** Superannuation Fund, including but not limited to loans owed to the fund, managed investments and derivative investments -
and there is a corresponding reduction in the entitlement that the husband would have in the Mr *** Superannuation Fund; and (b)
(5)
(6)
the husband in his capacity as director of the Trustee of the Mr Halstron Superannuation Fund, do all acts and things necessary and sign all documents required to roll over the superannuation split in order 4 (a) to the Ms Halstron Superannuation Fund.
For the purposes of order 4, the rollover of the wife’s superannuation split to the Ms Halstron Superannuation Fund is to be affected by way of cash transfer, with: (a)
the husband to be at liberty to sell such shares as required to give effect to the cash transfer; and
(b)
the amount of the cash transfer to be reduced by 35 per cent of the realisation costs reasonably arising from the sale(s) in the preceding sub-paragraph.
Pending compliance with order 4 above and save as provided for in order 5, the husband and the wife be and are hereby restrained from transferring, disposing of or dealing with the assets of their respective self-managed superannuation funds or otherwise reducing the value of their self-managed superannuation funds without the prior written consent of the party.
(See Halstron & Halstron [2021] FamCA 437 (24 June 2021)
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Mary Anne Ryan, Barrister, Derwent and Tamar Chambers Matthew Verney, Barrister, St Elmo Chambers Michael Trezise, Barrister, Malthouse Chambers