Acton and Hammer
[2013] FCCA 1174
•1 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACTON & HAMMER | [2013] FCCA 1174 |
| Catchwords: FAMILY LAW – Adjournment of final hearing sought on first day of hearing by self-represented litigant – adjournment application opposed by applicant and Independent Children’s Lawyer and ultimately refused by Court – due process – effective use of the Court’s time and resources – costs application. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZX, 117(4) Federal Circuit Court Act 1999, ss.42, 17A |
| Aon Risk Services Australia v Australian National University [2009] HCA 27 Sali v SPC Ltd (1993) 67 ALJR 841 GSA Industries (1990) 24 NSWLR 710 Gale v Superdrug Stores Plc [1996] 1 WLR 1089 Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894 Queensland v J L Holdings Pty Ltd [1997] HCA 1 Cropper v Smith (1884) 26 Ch D 700 Shannon v Lee Chun (1912) 15 CLR 257 Ketteman v Hansel Properties Ltd [1897] AC 189 Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536 Allesch v Maunz [2000] HCA 40 Tate & Tate (1997) FLC 92-724 Makita & Sprowles (2001) 52 NSWLR 705 Dietrich v R [1992] HCA 57 Mabo v Queensland [1992] HCA 23 Minister of Ethnic Affairs & Teoh [1995] HCA 20 B & B & Minister of Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621 Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCFCA 101 Re R Children’s Wishes [2000] FamCA 43 Bennett & Bennett (1991) FLC 92-191 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] HCA 44 Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 Whitman & Hacking [2013] FCCA 356 |
| Applicant: | MS ACTON |
| Respondent: | MR HAMMER |
| File Number: | PAC 3274 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 July 2013 |
| Date of Last Submission: | 1 July 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 1 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Counsel for the Independent Children’s Lawyer: | Mr Schroder |
ORDERS
All previous parenting orders are discharged.
The mother shall have sole parental responsibility for the children of the marriage X, born (omitted) 2002 and Y, born (omitted) 2004 (“the children”). The mother shall, however, contact the father at least twenty one days prior to making any decision about any major long term issues, or such less time as is available because of the nature of the decision to be made, indicating to him the matter requiring determination and seeking his views in relation thereto. The ultimate decision in respect of these issues, having followed this process, shall lie with the mother.
The children live with the mother.
Subject to orders 5, 6, 7 below, the children spend time with the father as follows:
(a)Each alternate weekend from 5pm Friday until 5pm Sunday, subject to these orders;
(b)In the event that the children are not spending time with the father on Father’s Day, from 5pm the Saturday preceding Father’s Day until 5pm on Father’s Day;
(c)During each shorter (term) school holiday period as gazetted by the NSW Government, for a block period as follows:
(i)In the event the father’s time pursuant to Order 4(a) falls on the first weekend of the school holiday, then such period to extend such that rather than concluding on Sunday such time to conclude at 5pm the following Friday; and
(ii)In the event the father’s time pursuant to Order 4(a) falls on the middle weekend of the school holiday, then the father’s time shall commence on the first Monday of the school holidays at 5pm and shall continue until the following Friday at 5pm (such that, taking into account the time pursuant to this Order 4(c)(ii) and the time pursuant to Order 4(a), the father’s time is from Monday at 5pm until the following Sunday at 5pm).
(d)In the Summer (Christmas) school holiday period in 2013/14 by the NSW Government as agreed between the parties, and failing agreement:
(i)The time at Order 4(a) is suspended, and such time recommences on the first weekend after the commencement of Term 1 as gazetted by the NSW Government each year;
(ii)From 5pm on the last day of Term 4 in December as gazetted by the NSW Government until 5pm on Boxing Day in years ending in an even number;
(iii)From 5pm Boxing Day until 5pm 2 January in those years ending in an odd number; and
(iv)From 5pm on 16 January until 5pm on 23 January each year.
(e)In the Christmas 2014/15 school holiday period and each alternate year thereafter for a two week block period commencing 5pm on the day after the last day of school attendance, Term 4, and concluding 5pm on the day 14 days later, and for the Christmas 2015/16 school holidays for a two week block period commencing 5pm 9 January and concluding 5pm 23 January.
(f)At any other or alternate times by agreement between the parties.
In the event that Mother’s Day occurs on a weekend provided for in Order 4(a) above, then the father’s time with the children is suspended from 5pm on the Saturday preceding Mother’s Day.
In the event that the father is more than 20 minutes late collecting the children from the mother at the commencement of a period provided for in Order 4 above, then the father’s time with the children shall be suspended for that period unless the mother agrees in writing to the contrary.
The father is restrained from taking the child Y, born (omitted) 2004, to a medical practitioner or specialist for the purpose of treatment or assessment other than pursuant to an Order of the Court or written consent from the mother.
Unless otherwise referred to in these Orders, or as otherwise agreed, changeovers for the purpose of these Orders are to take place at the (omitted) McDonalds on the (omitted).
Each party do all acts and things to facilitate the children communicating by telephone with the other parent whilst the children are in their care, such communication to be at reasonable times as the children may respectively express.
Each party shall notify the other of any new residential address details at least two weeks prior to any change in residential address.
Each party shall notify the other of any change in landline telephone or mobile telephone and email contact details not more than twenty four hours after that change.
The father shall do all acts and things to set up an email address and provide the details of that email address to the mother within 7 days of the date of these Orders.
That upon the father establishing the email address referred to in Order 12 above, the parties communicate with one another in relation to the children by way of email correspondence.
Each parent will ensure that the other is kept informed as soon as practicable of:
(a)Any medical problems, illness or injuries suffered by the children whilst they are in his/her care; and
(b)Any medication that has been prescribed for the children or either of them, or any over the counter medication being administered to the children.
In any period during which the children or either of them is living with either party, then that party must telephone or send an SMS text message to the other as soon as practicable (and in any event within one hour) of either child being hospitalised or receiving urgent medical treatment, or in the case of any other emergency.
Mr Hammer shall pay to Ms Acton or as she may direct in writing the sum of $1,100, representing her costs thrown away with respect to the listing and appearance, 24 April 2013, such costs to be paid within seven days.
Mr Hammer shall pay to the Legal Aid Commission of New South Wales by way of contribution towards the costs of provision of the Independent Children’s Lawyer the sum of $3,893, such costs to be paid within six months.
Dismiss the further application for costs and otherwise dismiss all outstanding applications and responses.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
IT IS NOTED that publication of this judgment under the pseudonym Acton & Hammer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3274 of 2011
| MS ACTON |
Applicant
And
| MR HAMMER |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications for parenting orders with respect to two young children:
a)X, born (omitted) 2002 (who will shortly turn 11 years of age); and
b)Y, born (omitted) 2004 (who has, on the past weekend, enjoyed his ninth birthday).
The parties in the proceedings are the children’s parents, being the mother, Ms Acton, who is the applicant and their father, Mr Hammer, who is the respondent.
History of proceedings
The proceedings have a lengthy history, having been commenced a little short of two years ago by the filing of an application initiating proceedings same having been filed on 20 July 2011.
By that application, Ms Acton sought orders for equal shared parental responsibility, for the children to live with her and for time to be spent by the children, with their father, each alternate weekend from Friday to Sunday, for periods during school holidays and special occasions. A number of specific issues orders were sought regarding consultation, provision of information and non-denigration.
A response to that application was filed by Mr Hammer on 28 September 2011. It is to be noted that the response was filed a little over two months after the commencement of the proceedings and to which I shall return shortly.
By that response, orders were sought by Mr Hammer that both children live with their father, that the father have sole parental responsibility for the children, that the mother’s time with the children be reserved until the release of an expert’s report. The response also sought that the mother be restrained from causing the children or either of them, to attend upon any medical practitioner for treatment, other than at a public hospital and, then only in the case of emergency and that the mother advise the father of such attendance immediately, including the identity of the hospital and the nature of the emergency.
Directions have been made, during the course of the proceedings, for the filing of an amended response by Mr Hammer. None has been filed.
The relief that is, in fact, sought by Ms Acton at hearing – these proceedings being listed to commence a scheduled three-day trial today – is different to that sought in the initiating application.
It should also be noted that an amended application, seeking relief substantially consistent with the relief originally sought by Ms Acton, has been filed by Ms Acton. That amended application was filed some little time ago. Thus, I am satisfied that the orders as sought by Ms Acton (in the case outline document, prepared and filed by her counsel and replicating that in the amended application), do not and could not take Mr Hammer by surprise.
The orders sought by the mother in accordance with the above minute of order, which I shall, for the purpose of this determination, mark as Exhibit ‘M1’, are in the following terms:
a)The mother have sole parental responsibility for the children, provided, however, that the mother contact the father at least 21 days prior to making any major issues decision or such short a time as is available prior to that decision being made and that consultation occur, but the ultimate decision be reserved to the mother.
b)That the children live with their mother.
c)That the children spend time with their father each alternate weekend from 5 pm Friday to 5 pm Sunday, (as well as for block periods during school holidays).
The mother also seeks, by way of injunction, an order that the father be restrained by taking the child Y to any medical practitioner or specialist for the purpose of treatment or assessment, other than pursuant to orders of the Court or with the mother’s written consent as well as a number of other orders, particularly regarding medical issues, they being issues of some significance in these proceedings and identified as such from the outset.
It is also to be noted that Ms Acton has, on 11 April 2013, filed an application in the case, seeking orders to vary existing interim arrangements and suspend portions of orders previously made. Those orders, if granted, would see or would have seen X and Y spending time with their father from 10am till 5pm each Sunday, rather than overnight alternate weekend time.
An order was also sought that the father do all things to ensure that Y is supervised at all times whilst in the father’s care, that the father be restrained from discussing these proceedings, or any issue or allegation raised therein, with the children or either of them, as well as a further plea for a non-denigration order.
That application in the case, on its first return date, 24 April 2013, was consolidated with the substantive proceedings and, thus, is also listed before me for hearing, although based upon the orders sought in the minute, Exhibit ‘M1’, the application in case no longer appears to be relevant.
Mr Hammer’s adjournment application
The father appears today self represented. The father seeks an adjournment of the proceedings.
It is to be noted that the father has, throughout the totality of the proceedings and whilst they have been before me, been self represented.
The father does not bring with him to Court any material filed in the proceedings, either by himself or by the mother, and is accompanied only by a paperback novel intended to inform his participation in the proceedings I know not how.
The father’s adjournment is sought on a number of bases, including:
a)He has prepared material for filing in the proceedings but does not wish to file it until he has had the opportunity of an attorney’s advice with respect to it, presumably, to assist in settling same.
b)That he wishes to obtain counsel to appear on his behalf with respect to the proceedings and has, since early in the proceedings, and at least predating the filing of his initial response in September of 2011, been in receipt of a grant of legal aid. Mr Hammer complains that he has been unable to locate a practitioner prepared to take on his case.
c)The father urges the Court to adjourn the proceedings, as he presently finds himself in a “bad situation”, particularly represented by his recently ceasing employment (with a company operated by his father), the termination of his relationship entered into following the termination of his relationship with Ms Acton, and has not slept well for some little time suggested, no doubt, to be in part connected with stress and concern with respect to these proceedings.
The adjournment of the proceedings is opposed by both Counsel for the mother and the Independent Children’s Lawyer. They each urge that the proceedings require a conclusion and have referred me to a number of authorities and aspects of the evidence in the proceedings with respect thereto.
To that extent, it is thus of some importance to address the history of the proceedings and the issues which arise therein.
History of adjournments and orders
The proceedings, having been commenced by Ms Acton, first came before the Court on 29 August 2011. On that occasion, the proceedings were before Henderson FM as she then was.
It is to be noted that an affidavit of service was filed, prior to the proceedings coming before the Court on that date, and deposing to service having been affected, personally, on 1 August 2011. Thus, by operation of the Federal Magistrates Court Rules2001, as they then were, a response and accompanying affidavit, required by the Rules, were to be filed within 14 days of service, not including the date of service and, thus, by on or before 15 August 2011.
When the matter was before the Court on 29 August 2011, no response had been filed. As a consequence, an order was made, adjourning the proceedings, directing that the parties attend a Child Dispute Conference and appointing an Independent Children’s Lawyer. Mr Hammer was also required to file and serve a response and affidavit within 14 days of that date, such period thus expiring on 13 September 2011, being approximately one week before the allocated Child Dispute Conference.
The response was, in fact, filed some two weeks late and on 28 September 2011, being after the Child Dispute Conference.
The Child Dispute Conference memo clearly outlined the differences between the parties’ proposals and commences with a recitation of discussion with Mr Hammer, indicating:
He said that he was applying for a change in the children’s living arrangements so that the children would live with him. Mr Hammer has said that he and Ms Acton had a verbal agreement in 2007, around the time that Ms Acton relocated to (omitted) with the children. He claimed that Ms Acton had not fully informed him of all of Y’s conditions and he doubted that Y had all of the problems that Ms Acton had alleged. Mr Hammer was suspicious of Ms Acton’s motives of making out that Y had all these problems, claiming that she had not involved him in the medical decisions about Y, despite the fact that he spent time with the children regularly.
As he and his wife had an excellent relationship with the children, he considered that there would be no difficulties in a change in the children’s living arrangements. Mr Hammer said that he had organised a second opinion from a paediatrician, a specialist in autism spectrum disorder, a diagnosis relevant to Y, to assess him. He admitted only to have suffered depression after his separation from Ms Acton.
At that point, and based upon the issues thus identified, the Family Consultant recommended the appointment of an Independent Children’s Lawyer, although that clearly had already occurred.
At that point in the proceedings, nearly two years ago, it was thus identified that there were issues regarding:
a)The emotional, psychological and mental health of both parents;
b)Issues regarding and surrounding diagnoses of the child Y, and controversy raised by Mr Hammer as to whether the child, in fact, validly, had been diagnosed as suffering from or dealing with autism spectrum disorder; and
c)A clear issue was identified as to the children’s time with each of the parties and whether they should move to live with their father from their mother.
When the proceedings next came before the Court on 16 November 2011, the proceedings were listed before Dunkley FM, as he then was. Both parties were legally represented and the Independent Children’s Lawyer appeared. The proceedings were adjourned to 19 December 2011 for interim hearing, although the basis for the adjournment, whether as a consequence of application by the parties or either of them or the Independent Children’s Lawyer or due to difficulties with the Court’s workload on that day, are not clear.
On 19 December 2011, an interim hearing proceeded and a number of interim orders were made. Mr Hammer appeared self-represented having dispensed with his attorney or his attorney having ceased to act. The difference between them and the basis for such self-representation occurring is not relevant. Mr Hammer has appeared on his own behalf subsequently and to date.
The orders of 19 December 2011 included orders for time between the children and their father and a number of restraints, including non-denigration, non-discussion of proceedings, non-consumption of illicit drugs or alcohol to excess and a prohibition against physical disciplining, punishing or restraining of the children or either of them.
The proceedings were otherwise adjourned to allow consideration as to the type of the Court which might be ordered, there being concern that a Family Consultant would not possess the necessary skill set to address the issues raised, particularly surrounding controversy regarding the diagnosis of autism spectrum disorder applicable to one of the children.
On 17 February 2012, the proceedings returned to the Court and on that date, orders were made by consent, appointing Dr M as a Part 15 Expert. The proceedings were otherwise adjourned for a brief period to allow the report to be prepared and released to the parties.
When the proceedings returned to the Court, on 4 April 2012, further interim orders were made by consent as between the parties, which had the effect of resuming the children’s time between their father, that time having broken down. The matter was, again, adjourned at the request of the parties and a number of further orders were made, particularly to facilitate both parents’ engagement with the Child and Adolescent Development Unit at (omitted) Hospital. That order would appear to have been made to ensure that each parent was fully appraised of and involved with any diagnosis or recommendation for treatment for Y.
Leave was also granted on that occasion for the mother to seek some contribution from the father, regarding the costs of preparation of Dr M’s report, she having initially funded the cost of the report in its totality and as a consequence of the need for that evidence to be obtained in light of complaint by Mr Hammer that he was not in a position to make contribution. It would appear, from that which has transpired today, that Mr Hammer was, at the time that the report was commissioned, in full time paid employment with a company owned and/or controlled by his father.
The proceedings were next before the Court on 12 September 2012. On that date, the matter was listed for final hearing, commencing 29 April 2013. Those dates were subsequently varied and moved to the dates presently allocated, as a consequence of changes to judicial diary, and those dates were advised to the parties and each of them, as well as the Independent Children’s Lawyer, on 15 March 2013.
The change in dates did not vary any of the trial directions made. Those trial directions germanely included a requirement for Ms Acton to file affidavit material, upon which she proposed to rely, by 8 February 2013 and for Mr Hammer to file affidavit material by 15 March 2013.
It is to be noted that Ms Acton’s material was sworn on the date fixed by order and it was filed on 11 February 2013. No suggestion is raised by Mr Hammer that he has been prejudiced by the delay which reflects, in effect, the document being filed on the next working day after swearing, the 8 February having been a Friday and 11 February, a Monday. In any event, if such complaint had been raised, it would be dismissed as invalid.
Material has not been filed by Mr Hammer, either before 15 March 2013 or at all.
The proceedings, again, came before the Court on 23 November 2012, on which date further interim orders were made by consent regarding the children’s time with their father.
On 13 December 2012, the matter, again, came before the Court. On that occasion, it was noted that Mr Hammer was no longer proceeding with his application to have the child Y live in his full-time care. There was no indication that relief as sought, with respect to Y’s sibling, was or would be varied.
As a consequence of the above being advised to the Court, a direction was made for Mr Hammer to file and serve an amended response, setting out the relief, in fact, proposed by him, same to be filed and served no later than close of business 25 January 2013. That has not occurred. It was otherwise ordered that the report of Dr M would be admitted into evidence without any requirement for his attendance for cross-examination and admitted without challenge. An order was also made on that occasion which required that Mr Hammer pay the mother’s costs of and incidental to the appearance on that date, assessed in the sum of $1100, such costs to be paid forthwith.
That is not the only order for costs that has been made in the proceedings and, indeed, a further order for costs, in the sum of $4,112.50, was made by me on 22 June 2012 which amount represented one half of the costs that had, in fact, been paid by Ms Acton for preparation of the report of Dr M. Also, on that day, an order was made for the parties to attend a litigation intervention conference, convened by the Legal Aid Commission. The appearances to which I have just referred, in the latter part of 2012, were, to some extent, occasioned, particularly the last thereof, as a consequence of the failure of Mr Hammer to participate in such a conference.
The delay which then arose and the necessity for further mentions was the basis for the costs order on 13 December 2012.
The proceedings were last before the Court on 24 April 2013, being the return date of Ms Acton’s application in the case. On that date, the presently allocated hearing dates were confirmed and all applications consolidated. A further order was also made in the following terms:
Both parties to be ready to proceed at the final hearing and, in event that either party has failed to file material, being:
(a) the Court will need to be persuaded as to why the matter should not be concluded on a final and undefended basis, as regards to the application of the party who has filed material and is ready to proceed;
(b) the Court will need to be persuaded as to why the matter cannot proceeding on the basis of oral evidence;
(c) the Court will need to be persuaded as to why the proceeding should be adjourned;
(d) in the event that the Court is persuaded, an adjournment of the substantive proceedings is warranted,
then the application of the case shall proceed and be heard.
On 24 April, 2013 the costs of the mother and the Independent Children’s Lawyer were reserved for determination until today.
It is also to be noted that, at the time that the initial hearing dates were allocated, a notation was included therewith to the following effect:
The above directions, while addressing procedural issues to prepare this matter for trial, are orders of the Court and, as such, compliance with those orders and directions is expected and by the date fixed and, further, the parties should note:
(a) In the event, material is not filed by the date required, then my associate shall contact that party or, if represented, their lawyer and that party or their lawyer will be expected to provide an explanation for their delay and commit to a realistic date by which their material will be filed.
(b) If material is 14 days late, the matter will be relisted with consideration given to further orders and directions, including costs of the appearance, on an indemnity basis and by whom such costs should be borne, possible vacation of allocated hearing dates and or an order that the matter is to proceed, on an undefended basis, as regards to the faulting party.
That notation, made 12 September 2012, was the genesis for the orders and notations made on 24 April 2013 and confirm that which has already been advised.
Issues and Expert Evidence
The report of Dr M was prepared expeditiously and funded entirely by Ms Acton, who is yet to be reimbursed, notwithstanding an order for costs requiring same.
The report was released to the parties by order, 20 March 2012, being some 15 months ago. The report raises a number of significant issues with respect to the future care arrangements for these children.
The report which, for the purpose for this determination, shall be Exhibit ‘C1’, offers at paragraph 115 that both X and Y have expressed consistent views with respect to their care arrangement. The author opines that he is satisfied, from that which he has ascertained from the children and his observations of them, that they have not been coached or unduly affected in their views or wishes nor influenced by behaviours of either parent or members of their family. Dr M also opines that the views expressed by the children are in clear and assertive manner and that significant weight should be given to X’s views in particular, having regard to her maturity and level of understanding.
In light of Y’s range of developmental vulnerabilities, it is suggested there would be limited weight attached to his views but that, in any event, there was consistency expressed by both.
At paragraphs 122 to 124, the author offered opinion with respect to the likely affect of change on the children’s circumstances and which suggests that some expeditious attention might be given to finality of arrangements, both to accord with the children’s views and to ensure that, if change is envisaged, that it does not become unduly unsettling for these children.
Commencing at paragraph 134 of the report, and specifically paragraph 135, the author opines:
Both parents were identified to have significant areas of psychologist or psychiatric vulnerability. This was seen to be highly relevant to their approach to family circumstances.
Notwithstanding so, it was opined at paragraph 141:
Both parents presented as highly intelligent and articulate individuals, with significant strengths of character.
The above are matters extracted from the report, the totality of which I have read in considering and, now, determining the application for an adjournment and which I will give further consideration as regards determination of the substantive matter.
Principles applying to adjournment
Counsel for the mother relied upon the High Court’s decision in Aon Risk Services Australia v Australian National University [2009] HCA 27. That authority is germane to these proceedings and contains, both in the individual judgment of French CJ and in the majority judgment, salient pointers to matters which the Court might consider. Thus, I have had regard to paragraphs 25 to 30 of the judgment of French CJ, together with paragraphs 92-100 of the majority judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ), commencing with as follows:
92. The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation".
93. Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd (1993) 67 ALJR 841 Toohey and Gaudron JJ explained that case management reflected:
"[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...".
94. It will be recalled that in Queensland v J L Holdings [1997] HCA 1 the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed "except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable". Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times. In Gale v Superdrug Stores Plc[1996] 1 WLR 1089 Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
95. The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
96. An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power.
97. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
98. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99. In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith (1884) 26 Ch D 700 Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun (1912) 15 CLR 257 which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
100. The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536 French J said of Bowen LJ's statements in Cropper v Smith:
"... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
Those paragraphs address, fairly and specifically, the obligation upon Courts to ensure that business is transacted effectively and efficiently, by reference, not only to the interests of the parties, but those of the Court and other litigants and users of the Court. In particular, French CJ, quoting the decision of Lord Griffiths observes:
The pressure on Courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. The emollient effect of an order for costs as a panacea may now be consigned to the Aladdin’s cave, which Lord Reid rejected as one of the fairy tales in which we no longer believed.
Reference is made to the decision of New South Wales Court of Appeal in GSA Industries (1990) 24 NSWLR 710 and saliently to particular passages of the decision in Sali v SPC Ltd.
The first of the above references is from the decision of Brennan, Deane and McHugh JJ:
What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of Court resources.
The same judges also indicated the following:
As a sage reminder to the Court, do not become obsessed with such issues. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times that the ultimate aim of the Court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Their Honours also went on to clearly remind the Court as follows:
Justice is the paramount consideration for determining an application such as the one in question. Save insofar as costs may be awarded against the parties seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the Court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of discretion.
Kirby J, from the same case, has also eruditely identified and addressed a number of matters of vast significance for this Court, (as was his Honour’s want). His Honour opined:
Considerations which tend to argue against the grant of an indulgence of an adjournment include many which are the counterparts of the foregoing [which he had set out previously]…Thus, by failure of a party to offer anything, by way of explanation for a late application, has been held relevant. Courts now take into account the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, in the anxiety, distraction and disruption which litigation causes. Because justice cannot be measured, solely, in monetary terms, cost orders are not, necessarily, an adequate balm to the other party. Thus, the proximity of the hearing is, clearly, a most important consideration.
His Honour also opined:
Courts are entitled to react unfavourably to repeated default on the part of a litigation, whose conduct has the effect of frustrating a proper timetable fixed for the trial. Justice will not necessarily require that a party should have multiple opportunities to plead and present its case. A Court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.
As so often was the case, Kirby J has set out an erudite and comprehensive framework in which I can thus consider this application.
I have also had consideration to the Full Court’s decision in Tate & Tate [2000] FamCA 1040, being, perhaps, one of the most germane determinations for issues such as arise this case. I thus incorporate herein their Honours’ deliberations paragraphs 74 and 75, together with paragraphs 99 to 108 inclusive:
74. The interlocutory orders made by the trial Judge by way of case management, were no less orders of the Court. There were entitled to full and punctilious obedience. This Court has a duty to order its business with justice according to law. The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial. Litigants in such matters also have the duty of full and frank – and we would add prompt – disclosure of relevant financial matters. Against that background the trial Judge’s specific orders achieved an even greater potency. They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record and to be obeyed as such according to their terms, which included specific times for performance.
75. It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the Court’s orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them. The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed.
99. In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.
100. The aim is to produce a better focussed trial which, by concentrating on essentials, is shorter and thus less costly to all concerned. Not only are the resources of litigants thus conserved, so, too, are the far from limitless resources of the Court.
101. Problems of delay in the attainment of justice have long plagued the Courts. Well known remedies were even sought by way of Magna Carta in the thirteenth century. The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction. Delays in cases such as this are often not fully compensable in purely money terms. Here the husband claimed his new partner had just had a second child by him. Over four years had elapsed since the commencement of proceedings and the wife had not received the money to which the trial Judge eventually found her to be entitled, nor had she been able to enjoy the peace and security of having put this failed relationship behind her.
102. The parties were not the only ones affected. The wife claimed the litigation had had “quite an effect” on her children, and on herself as their chief carer.
103. In many cases monetary compensation is not an adequate remedy for delay. In property disputes, especially where the needs of the parents which whom children are living need to be addressed, adjournments with or without costs orders may be totally inadequate in doing justice between the parties.
104. To eliminate or at least greatly reduce unacceptable delays, within the resources available, is a constant goal of the Court. In achieving such reduction as may be possible, the co-operation of all litigants, legally represented or appearing in person, is essential. Thus it is fundamental that case management directions and orders of the court in preparation for trial (or settlement) must be respected and obeyed.
105. Interlocutory processes must at all times necessarily balance the rights of all litigants to justice according to law. Such litigants comprise not only those party to such cases as are listed for hearing but also those litigants waiting for hearing dates due to the congestion of the lists. It is common sense, that, when time is allocated to a particular case, it should be ready to proceed and fully utilise the time afforded it. Such time should be no less and no more than that which is needed to do justice in the particular matter.
106. In this instance, the matter had been before the Court on no less than 27 occasions. On two previous occasions it had been necessary to vacate trial dates. It takes little imagination to perceive that the Court’s resources devoted to this one case (let alone other proceedings between the same parties that were adverted to as well), was utterly disproportionate to the issues involved. Such court resources, if not squandered on this matter, would have been available to other litigants who did obey the court’s orders and directions.
107. The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
108. Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
In returning to Kirby J’s erudite discussion of principles which apply, I note the following use of the Court’s resources:
a)These proceedings have been before the Court for nearly two years. That is a significantly greater period than is desirable from the Court’s perspective and I have no doubt a significantly greater period than is desirable from the perspective of the parties and the Independent Children’s Lawyer. However, delays of such magnitude are occasioned by exactly the type of application before the Court today.
b)These proceedings have been listed today as a special fixture with no other business before the Court as so as to ensure that the case can be heard and determined to finality and without interruption. Indeed, the matter has been listed on days which were otherwise allocated for judgment writing, 76 of which I have given in the last three years to try and address the tide of work which continuously flows into this Court;
c)The other nearly 400 cases on my docket been and will now, again, be further delayed as a consequence of this matter not being in a position to proceed on other than an undefended basis.
d)As a consequence of pressures of work, if these proceedings are adjourned, they cannot be accommodated for hearing, with any reasonable any expectation of being heard or without that expectation being created through other matters being pushed from the way, until April of 2014, some 10 months hence.
Thus, if the proceedings are adjourned, these children and their care arrangements will be put on hold for the best part of another year and the matter will have taken three years to reach conclusion. That is in the context whereby the Court’s budget does not increase from year to year in any significant fashion and the resources of this Court, as a consequence of appointments to the Family Court announced on Friday last, are further depleted through the elevation of one of my colleagues to the Superior Court (for which he has my hearty congratulations).
Thus, the backlog of work which awaits hearing will, potentially, be further delayed if these proceedings are adjourned.
The report in these proceedings, if the matter is adjourned, will require updating. It will be, by the time of a hearing in April next year, more than two years old, and thus the facts and circumstances which have been considered and upon which opinion has been based have, almost inevitably, changed. As a consequence, if the report is not updated there will be, potentially, significant Makita & Sprowles (2001) 52 NSWLR 705 issues which would render the value and utility of that report, commissioned at a cost in excess of $8,000 solely funded by Ms Acton (who also has the full-time care of these two children and, one would assume from Mr Hammer’s indication to the Court this morning that he is presently unemployed, that he pays very little or no child support). If the report is updated Mr Hammer would no doubt say the Court must again look to Ms Acton to fund it.
The cost to the community of this matter not being ready is, thus, extreme. Other cases have been delayed. The entire assemblage of litigants resident upon my docket have seen three days thrown away which others could and would have gladly used, prepared for and taken full advantage of. That is certainly a factor which, in my mind, weighs heavily against the application for adjournment of Mr Hammer by and of itself.
Those difficulties are compounded by Mr Hammer’s failure to comply with past orders and directions. It has been clearly noted, on at least two occasions including as recently as April of this year, that the matter would proceed to finality without oral testimony or cross examination unless the Court was persuaded to the contrary. Mr Hammer bears that burden.
The issue arises as to whether due process can be properly afforded to Ms Acton if the proceedings are adjourned when her case is laid out before Mr Hammer many months ago and he has had more than ample opportunity to respond.
I am not satisfied that oral testimony should be permitted in those circumstances.
As Eleanor Roosevelt opined, “Justice cannot be for one side alone but must be for both”. Thus, due process is to be afforded to both parties simultaneously in proceedings and not solely focused upon one party. Thus, whilst I accept that there is some real issue which might be suggested regarding extension of due process to Mr Hammer if he is not permitted to present his case orally, I am satisfied that it would:
a)Create a corresponding and outweighing prejudice to Ms Acton and her counsel (and the Independent Children’s Lawyer); and
b)In all probability, require further and significant adjournment of the proceedings and create difficulties whereby the matter could not be contained within the allocated hearing time.
Ms Acton would be entitled to thus present a significant case in reply once she has heard that which might fall from Mr Hammer in oral testimony. Her counsel would require an adjournment before embarking upon cross-examination as would the Independent Children’s Lawyer. There may be issues which arise which take them by surprise and which require inquiry which cannot be completed within the hearing time and thus the object and purpose of the matter proceeding on that basis would be frustrated.
I accept that the Federal Circuit Court Act 1999 and Rules 2001 allow and permit oral testimony; however, it is with the Court’s leave. In those circumstances, I must also take into account the opportunities that have been afforded to Mr Hammer to present his case fully and properly. Whilst I referred to the High Court’s decision in Aon Risk Services Australia v Australian National University, I have also had consideration to the deliberations of the High Court in the Dietrichv R [1992] HCA 57 and accept that it is distinguished from this case in a number of important respects.
Right to Counsel
Firstly, as their Honours had observed our justice system, unlike Canadian and United States jurisdictions, has no Bill of Rights which contains and enshrines a right to counsel. Their Honours were clear, in any event, that such right is and must be tempered in certain circumstances. I am satisfied this is one of them.
These are not criminal proceedings. These are not proceedings in which the liberty of a person is under threat such as would, for instance, pursuant to the Sixth Amendment of the U.S. Constitution, invoke the requirement for Counsel, Court appointed if necessary.
This Court does not have the capacity to appoint attorneys. It relies upon the Legal Aid Commission for such assistance, for instance, in the appointment of Independent Children’s Lawyers. The funding of the Commission in New South Wales is parlous, although, thankfully for this Court in this registry, at a slightly higher level than that in some States. However, the day is no doubt rapidly approaching, and such days have arisen in the past, when the Legal Aid Commission is simply not in a position to aid those who would otherwise be more than abundantly meritorious.
Relevance of Legal Aid Funding
That is even further compounded by a factor which again returns to and touches upon that which Kirby J had discussed, being Mr Hammer advancing an explanation for delay. None is offered at all other than Mr Hammer suggesting that he has had a grant of Legal Aid for approaching two years, but has been unable to obtain an attorney prepared to act in accordance with that grant.
Mr Hammer has not brought the grant with him to tender to the Court. All that Mr Hammer would appear to have brought is a paperback novel for his entertainment during the day.
The grant of aid, if it exists, and I have no reason to doubt that which Mr Hammer puts to the Court, although as observed by counsel for the mother what is put is not sworn testimony, the grant letter not being before the Court makes it impossible for the Court to determine whether such inquiries would be of any future benefit or utility. It also makes it impossible to understand how it could be that Mr Hammer suggests that he has contacted a multitude of lawyers and none have been in a position to assist him notwithstanding that the case has been on foot and the grant of aid apparently in existence for approaching two years.
Mr Hammer’s actions to comply with orders
I simply cannot accept that any reasonable step has been taken by Mr Hammer and thus I am satisfied there is no plausible explanation for delay and ill preparedness such as would support let alone compel adjournment.
More importantly there has been delay and non-compliance by Mr Hammer from a very early stage as regarding orders made by this Court. The costs orders previously made remain unfulfilled. It may well be that there is some real practical and financial issue that causes that. However, no attempt would appear to have been made to satisfy the order or communicate any difficulty. Mr Hammer has simply thumbed his nose at both the order and Ms Acton.
It is suggested by Counsel for the mother that when steps were taken through this Court by Ms Acton, using the Court’s enforcement provisions to seek the garnishee wages from the father, that he left his then employment. Mr Hammer denies that allegation and suggests that it is mere coincidence.
I do not need to determine the issue, however, that circumstance in itself satisfies me that:
a)there has been non-compliance with and non-fulfilment of the Court’s costs orders - well in excess of $5,000 as they stand; and
b)it is not possible to even comprehend an order for costs as an appropriate remedy for Ms Acton if the proceedings were adjourned.
That leaves aside the issue of determination of the Independent Children’s Lawyer’s and mother’s costs from the last occasion in April and today.
I simply could have no confidence that a cent would be forthcoming from Mr Hammer to satisfy any order for costs made today or previously and thus it is not only an ineffective remedy but ordered against an apparent “man of straw”.
The Court’s resources
As regards the Court’s resources, as I have already indicated, adjournment would again cause other matters and other work and business of the Court to be delayed. That is unacceptable and I will not countenance it, particularly in the absence of explanation as to any reasonably step taken by Mr Hammer to secure representation or to even file material.
Mr Hammer failed to attend Family Dispute Resolution as ordered for a period approaching six months. That failure delayed the proceedings and caused at least two further mentions in the matter.
Mr Hammer has not filed the amended response that he was directed to file, and thus the Court, Ms Acton and the Independent Children’s Lawyer are left with no understanding of the orders that would, in fact, be sought by him if the case were adjourned. It is entirely unsatisfactory that no explanation is offered for that failure.
Mr Hammer suggests that he requires and desires the assistance of Counsel. Again, by reference to the High Court’s decision in Dietrich I have no difficulty in accepting that this is his desire. However, he has offered no evidence of any active step taken by him to act on that desire and for a period not approaching 2 years.
I have no difficulty in accepting that Mr Hammer would be in a better position to present his case fully and properly to this Court if he were legally represented by competent counsel. However, representation by counsel is not a matter of entitlement. Proceedings are not stayed pending such representation being found nor adjourned when nothing has previously been done to secure representation.
This is not a capital trial before a State or Federal Court in the United States to which the Sixth Amendment applies. It is not a case before a Canadian criminal court involving a potential loss of liberty to which the Canadian Bill of Rights applies. It is a civil case before an Australian Court in which there is no Bill of Rights, no right, expectation or entitlement to counsel or representation or, indeed, assistance.
This is a case also involving care and welfare arrangements for two young children, one of whom has a significant difficulty in life as a consequence of his diagnosis of autism. That has not been accepted by Ms Acton as a valid or appropriate diagnosis. Thus, Ms Acton has sought the restraints referred to in her initiating application and subsequent documents. Thus, the report of Dr M was required. The skill set necessary for preparation of a forensic report in this case was not possessed by the Court’s Family Consultants who, but for Mr Hammer placing the autism diagnosis in issue, could have prepared a report without cost to the parties.
Appointments (to discuss the diagnosis and treatment) that have occurred with the (omitted) hospital would not appear to have been attended by Mr Hammer or, if attended, not attended with any regularity, presumably because he simply does not accept that which is opined by them.
It is to be noted that a comprehensive report by the (omitted) hospital treatment team is annexed to Dr M’s report. Dr M concurs with the diagnosis. Following the release of Dr M’s report Mr Hammer indicated that he still does not accept the diagnosis. Whether he does or does not accept the diagnosis, the difficulty that is created and which speaks against the adjournment application is the use of resources, to date, funded by Ms Acton, which have been necessary to enable this case to progress and to address controversy raised by Mr Hammer and with respect to which Mr Hammer has taken no active step.
To the extent that Mr Hammer suggests that one of his difficulties in obtaining Counsel through his existing grant of legal aid is the complexity of the matter, that may well arise, if it arises at all, as a consequence of the need, in Mr Hammer’s case, to obtain medical evidence to present so as to contradict that offered by Dr M and at least three others involved in the (omitted) Hospital treatment team.
The use of resources in this case has not been “stingy” from the court’s perspective. On the first return date a family consultant was made available and Independent Children’s Lawyer as appointed at cost to the State Commission. Every available resource, through this Court, including referring the parties to courses and programs in other community based services funded by the Federal Government, has been used or made available.
The only delay and the only absence of resource has arisen from Mr Hammer. He has failed to file documents. He has failed to attend family dispute resolution in a timely fashion. He has failed to meet orders which would see him contributing to the cost of Dr M’s report and the evidence commissioned thereby and he has again failed to file any document with this Court.
In almost contemptuous disregard of these proceedings, he has failed to even bring with him the documents which have been served upon him having been filed by Ms Acton let alone those he professes to have prepared himself. As I have indicated, he has brought nothing but a novel. How he sees that as being of any assistance to him in conducting the case is completely incomprehendable.
Perhaps it is on the basis that he is so confident that the matter could not possibly proceed if an adjournment application were made by him and the application for adjournment could not possibly be refused. However, refused it will be.
The use of the court’s resources is, in fact, the least of my concerns, although I have laboured them somewhat in these reasons. My real concern relates to due process being afforded to Ms Acton and the children’s best interests being prioritised.
Due process to Ms Acton
Ms Acton is described, in the report, in the same terms as Mr Hammer, as being intelligent and articulate but having experienced some psychological difficulty in the past, diagnosed or otherwise. Ms Acton is thus, what Dr M described, “vulnerable”. She is engaged with a treating psychiatrist. She has the care of two children, one of whom, on the basis of Dr M’s evidence, and that opined by the treatment team from the (omitted) Hospital, has significant special needs. That would, of itself, be a strain upon her even if she did not have an underlying vulnerability.
She has expended her own resources, not only financial but emotional and intellectual in providing full and proper instructions to her attorneys, noting she is not legally aided and she has prepared her case diligently, thoroughly and appropriately and in accordance with the court’s orders and directions.
Ms Acton is entitled her day in Court. Mr Hammer is also entitled to his day in Court, but he does not seek to have it today. He seeks adjournment so that he might do that on another occasion.
However, in addressing the twin pillars referred to by Kirby J, if I might so describe them, I must look to the reasonable explanation offered by Mr Hammer and particularly how that impacts upon his right to due process as well as look to the future and what might change.
On the basis of non-compliance with orders throughout the conduct of these proceedings, at least whilst the matter has resided upon my docket, I have no confidence anything will change as regards Mr Hammer’s position. To suggest that documents have been prepared but they have not even been brought to Court today suggests, as I have already indicated and I am satisfied thus represents, contemptuous disregard of these proceedings, Ms Acton’s position therein and, ultimately, the children’s best interests which are paramount in these proceedings by reference to s.60CA. I am satisfied that s.60CA is drawn in sufficiently broad terms as to remain the paramount consideration in this application for adjournment.
Ms Acton would be significantly prejudiced by an adjournment. That is not addressed by Mr Hammer in his submissions, they being focused upon his potential or suggested prejudice or what might be best described as self-entitlement.
Ms Acton has already met significant cost through funding Dr M’s report, in excess of $8,200, for which she has received no recompense. She has incurred significant cost in instructing her attorneys. That is not intended as pejorative of her attorneys who are entitled to be paid for the work that they do. I do not know what the entire costs funded by Ms Acton have been nor do I need to know them. They are a matter for her and her counsel. However, I have no doubt that the costs have been significant even though that is not to suggest inappropriate.
The emotional cost to Ms Acton, as Kirby J referred to in the passages to which I have referred, are also significant. Ms Acton is described by Dr M as “vulnerable” and an adjournment for a further period of 10 months, when there are clearly and as recently of April this year, some two months ago, significant difficulties with the operation of the present orders such that an application in a case supported by evidence was filed, served and brought before the Court promptly, would be onerous. To allow those difficulties to continue, from Ms Acton’s perspective, would be a dereliction of this Court’s duties and responsibilities as regards her right to due process which is interconnected in this instance with Mr Hammer’s but which outweighs it.
Relevance of the children’s best interests to adjournment
There is also the significant issue of due process to these children. They are not parties and thus due process is not afforded to them in its full or genuine sense. However, their rights and interests are protected, preserved and indeed prioritised by s.60CA over those of all others including their parents’.
That is not to suggest, although I am not called upon to make any decision with respect to it, that the children’s best interests can or should outweigh or could, in fact, outweigh the right of either parent to due process. For the Court to appropriately prioritise the children’s best interests as paramount, the Court must afford due process to the parties. However, I am not satisfied that in this case the two are in conflict. They are, in fact, aligned particularly as regards to due process afforded to Ms Acton.
Mr Hammer has not been denied due process. He has been given a period of nearly 10 months to file material. The orders that were made listing the proceedings for trial included a liberty to restore the matter to the list in the event of difficulty so that any such difficulties could be addressed before they reached the point they have today.
Mr Hammer’s application for adjournment is not made at an early time. It is not made at or before the expiration of the period for the filing of documents by Mr Hammer which period expired nearly four months ago. The application for adjournment is made on day one of what was expected to be a three day special fixture hearing dealing with interests of children whose interests are presently, I am satisfied and as would be apparent from the above, prejudiced by conflict and unresolved difficulties and which this hearing was listed to seek to address.
Whilst I am conscious that s.42 of the Federal Circuit Court Act 1999 requires that proceedings within this Court proceed without undue formality, that provision also requires that the Court endeavour to ensure that proceedings are not protracted. The proceedings will be lengthened by 50 per cent, nearly a year, if adjourned and other cases will be displaced. That means that Ms Acton will incur further cost. Ms Acton is not assisted by Mr Hammer as regards to meeting these children’s needs in providing for their day-to-day care and welfare. Ms Acton has, and her application if successful would continue, her primacy of care for these children. She receives no child support.
It would seem apparent from the positions of each of the parties both as set out in their respective application and response (as amended) and as reported by Dr M, that each of the parents concede that anything other than an arrangement of primacy of care is impracticable. The parties live at different ends of the greater Sydney metropolitan area: the mother in the (omitted), the father in the (omitted). On that basis, the travel between these parties is such, these being children of school age, that any arrangement other than a primary care arrangement would be difficult to comprehend, and indeed each of the parties has, through their discussions with Dr M, if nothing else, conceded that that is so.
On past occasions and including at a time that it was noted by the Court that Mr Hammer did not seek to press his application to have Y come to live in his care, there has been an apparent misapprehension on the part of Mr Hammer as regards the basis of determination of proceedings. Mr Hammer suggesting that as the children had spent some years living with their mother that it would be “only fair” and appropriate for the children to now spend a similar period living with their father so as to experience life in his household. That, whilst a curious position to have advanced to the Court, has not formed part of any evidence before the Court other than a statement from the bar table. However, it causes me some concern particularly when, even if I were ultimately persuaded that this were an appropriate position to adopt and thus ordered by the Court, such consideration will be delayed for the best part of a year if adjourned.
Procedural options
I have no confidence that Mr Hammer will remedy the difficulties that he faces with preparation of his case. He was in a position to remedy the difficulties by bringing documents with him to Court today so that he was in a position to swear them, serve them, (subject to any application for adjournment that might then arise from them being taken by surprise through late service), and to then conduct a case. He would have been in position, had he seen fit, to bring any of the material filed in the proceedings with him and make application to give oral evidence.
As I have already indicated, I am not satisfied that Mr Hammer giving oral evidence is practical in the circumstances brought about through his own actions. Nor would it be appropriate in that it would deny due process to Ms Acton and, in all probability and I am satisfied, would not bring the matter to a conclusion but would simply cause the adjournment of the matter either in its totality or on a part-heard basis which would be even more fraught with difficulty both as regards the conduct of the proceedings and the children’s best interests.
The children have a voice in these proceedings. They are ably represented by an Independent Children’s Lawyers and Counsel appearing therefore. They oppose the adjournment and appropriately so in light of the matters to which they have referred me, particularly those raised by Dr M.
There is a significant issue regarding the diagnosis of Y with autism. The diagnosis is not accepted by both parents. As a consequence there has been some real impediment in Y receiving that which his treating doctors suggest he needs. It is no doubt on that basis, if not others as well, that the mother seeks an order for sole parental responsibility. Indeed, that would appear the only means by which full and appropriate treatment regimes can be put into place for Y if the diagnosis is accepted which, on the available evidence, it must be.
Mr Hammer has filed nothing to support a contrary position. He has not sought to file anything further and he has not, at any time in these proceedings, advanced any evidential basis for a finding by the Court which would be consistent with his opinion that the child does not experience the symptoms which have given rise to the diagnosis and which require appropriate treatment and management or which in any way creates, in the Court’s mind, any concern or doubt as to either the mother’s motives in pursuing treatment nor it being suggested that she manufactures, embellishes or exaggerates the symptoms, the diagnoses and recommendations offered by treaters.
In those circumstances, there is a compelling basis by and of itself for the proceedings to be brought to a conclusion having regard to the children’s best interests. As I have already made clear, I would hope, I am satisfied that to do so is not in conflict with nor does it deny due process to Mr Hammer. He is an instrument of his own doom. He has filed nothing, done nothing, sought to bring nothing to the Court’s attention, given no notice to other parties that he seeks an adjournment, but simply appears this morning, novel in hand, praying for same.
Determination of adjournment application
The application for adjournment is refused.
The matter will proceed on the basis of the material as filed. Mr Hammer may, if he wishes to, remain. Mr Hammer will, consistent with the Full Court’s decision in Tate & Tate, have no right to cross-examine. There is no counter position for him to agitate and thus cross-examine upon. I have only the evidence of the mother.
These proceedings will now conclude before me with respect to the substantive matters in issue.
Orders sought and material considered
In relation to the orders sought by Ms Acton they are set out in Exhibit ‘M1’. The Independent Children’s Lawyer supports those orders with one variance thereto, being arrangements for the Christmas 2014, Christmas school holiday period and continuing. That proposed amendment has been addressed through instructions provided by Ms Acton to her Counsel and a further brief submission has been put with respect thereto.
As regards the proceedings and as would be apparent from the above reasons the matter proceeds in essence on an undefended basis.
Counsel for the mother has filed an extensive case outline document, as has the Independent Children’s Lawyer, setting out the material to be read and considered.
I have read and considered each of those documents, which for the benefit of these reasons comprises:
a)The amended initiating application filed 16 August 2011;
b)The minute of orders, Exhibit ‘M1’;
c)The affidavit of the mother filed 11 February 2013;
d)The affidavit of the mother filed 11 April 2013;
e)The affidavit of the maternal grandmother filed 11 April 2013;
f)The report of Dr M, which annexes thereto minutes of the meeting of the (omitted) Hospital unit dealing with the child Y.
No further tender is made in the proceedings.
Chronology of events
The chronology of events, I am satisfied, is more than abundantly and appropriately reflected in the chronology contained within the Independent Children’s Lawyer’s case outline document, and thus I incorporate herein that chronology of events.
| (omitted) 1976 | mother born |
| (omitted) 1978 | father born |
| 1993 | mother treated for heroin use at (omitted) |
| 1999 | mother treated for heroin detox. Asserts no use since then. |
| 2001 | Date of cohabitation |
| (omitted) 2002 | Child X born |
| 2002 | Father diagnosed with bi polar |
| (omitted) 2003 | Date of marriage |
| (omitted) 2004 | Child Y born |
| 10 August 2006 | Date of separation |
| 16 March 2009 | Parenting plan for: • Children Live With the mother • Children Spend Time With father alternate weekend • Mother to have responsibility for health education medical treatment and extracurricular activities |
| April 2009 | Y diagnosed [incorrectly] with Global Development Delay. Later diagnosed with Autistic Disorder |
| 11 September 2009 | Further parenting plan which defines father’s weekend time |
| 1 August 2010 | Date of divorce |
| December 2010 | Dispute over Christmas Holiday time with the father |
| 20 July 2011 | Mother commences proceedings |
| 30 July 2011 | Provisional AVO for the protection of the mother |
| 29 August 2011 | Orders • Independent Children’s Lawyer appointed • CDC • directions |
| 19 December 2011 | Orders • Children Live With the mother • Specific dates for the children to Spend Time With the father |
| 17 February 2012 | Orders appointing Dr M |
| 4 April 2012 | Orders • Parties to attend (omitted) for a joint case management meeting with treating professionals and follow advice concerning Y • Orders for the father to Spend Time With the father |
| 22 June 2012 | Pending Further Order • The children Live With the mother • Equal Shared Parental Responsibility • Spend Time With father Friday to Sunday each alternate weekend |
| 29 September 2012 | Directions for trial Costs Orders Pending Further Order the children Spend Time With the father in block periods during school holidays |
| 13 December 2012 | Orders • Father file and serve Amended Response • Report of Dr M admitted into evidence without any requirement for cross examination |
I have also taken into account the skeletal submissions by each of counsel for the mother and the Independent Children’s Lawyer as contained within their respective case outline documents.
Legislative Pathway
In turning to the legislative pathway, I am required to commence with a consideration of the objects and principles. Whilst these proceedings were commenced prior to the commencement of the 7 June 2012 amendments, and thus the totality of the International Convention is not expressly contained within the legislated objects and principles, they all remain relevant in informing the application of the mandated provisions of the legislation (see for example Mabo v Queensland [1992] HCA 23, Minister of Ethnic Affairs & Teoh [1995] HCA 20, and B & B & Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621).
The objects and principles require, to the extent that they are specifically enumerated, that the Court endeavour to ensure the best interests of children are met by:
a)Ensuring the children have the benefit of both their parents having a meaningful involvement in their life;
b)Protecting children from physical or psychological harm;
c)Ensuring that children receive adequate and proper parenting; and
d)Ensuring that parents fulfil their duties and responsibilities.
The principles set out in subsection 2 create a number of rights for the children including, importantly, the child’s right to know and be cared for, subject to it being found to be other than inconsistent with their best interests, a relationship with both parents.
Section 60CA reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
Parental Responsibility
I must then turn to s.61DA and determine whether the presumption of equal shared parental responsibility applies. If it does apply, I must then also consider whether it is rebutted by evidence that satisfies the Court that it is not in the best interests of the children for the parents to continue to have equal shared parental responsibility.
In dealing with that application, particularly as regards the application inter parties, s.117(1) applies, being what is generally referred to as the “general rule” that each party should pay their own costs. However, it is subject to the discretion reserved in subsection 2 that the Court may, in circumstances where the Court is satisfied that it is appropriate to do so by reference to the dual tests of there being a justifying circumstance and it being otherwise just and equitable, make an order for costs.
It is to be noted that the general rule in subsection 1 does not apply to the Independent Children’s Lawyer, as they are not a party to the proceedings (see, for instance, Bennett & Bennett (1991) FLC 92-191). Whilst they have a status analogous to a party for most purposes, the wording of the section is clear and specific in limiting the general rule as to each party paying their own costs as between themselves. If the legislation had intended the provision to apply to Independent Children’s Lawyers, it would no doubt have been amended to so refer. Thus somewhat different considerations apply.
The Court is reminded, however, by subsection 3 that the Independent Children’s Lawyer has standing to bring and prosecute an application for costs, and is further reminded by subsections 4A and 5 that the Court must not, when considering any such application by an Independent Children’s Lawyer, have regard to or make a determination based upon regard for the funding arrangements in place for legal aid commissions. The Court must have regard to the factors set out in subsection 2A, although they are not exhaustive.
As the High Court has made clear in Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] HCA 44 both circumstances, i.e. a justifying circumstance and justice and equity, must be established, and again, as regards an application by an Independent Children’s Lawyer, the Court must also be mindful of the prohibition against an order for costs being made if:
a)The party to the proceedings against whom an order is sought “has” received legal aid in respect of the proceedings; and/or
b)The Court considers that a party would suffer financial hardship if required to bear a portion of costs.
In dealing with the application inter parties and by reference to subsection 2A(a), I consider the following.
The financial circumstances of the parties
Clearly Ms Acton is not in paid employment. She meets her own legal fees through her own resources, no doubt assisted substantially if not completely by her extended family. However, that does not obviate against the fact that her financial circumstances are meagre. She does not receive any significant financial assistance by way of child support.
Mr Hammer’s financial circumstances were previously set out in a statement of financial circumstances filed by him. However, that document would appear to now have limited relevance as Mr Hammer has indicated to the Court today that he is presently unemployed. In those circumstances, any portion of that document dealing with or making reference to income would not appear to be accurate. However, the balance of the financial statement would suggest that Mr Hammer’s financial position is far from strong, as he has indicated to the Court this morning, and he owns few assets.
Whether any party is in receipt of grant of legal aid
That is a vexed issue to which I will return shortly, and particularly as part of dealing with the Independent Children’s Lawyer’s application. However, it does not preclude any order for costs being made inter parties and subject to it then being a matter as between the litigant and the funding body as to what liability is borne by each or either. Ms Acton is not legally aided and meets her own costs.
The conduct of the parties to the proceedings
That is relied upon by counsel for Ms Acton, and on the basis that the listing of the proceedings was necessitated, as referred to in subsection (d), by the failure of Mr Hammer to file material as ordered.
The proceedings generally have been conducted by Mr Hammer in a fashion that has not supported their expeditious conclusion through negotiation or otherwise. They have been dealt with in the judgment delivered by me earlier this morning regarding the adjournment application. In any event, I am satisfied that as the proceedings were initially listed solely as a consequence of failure to file material, that the conduct of Mr Hammer is relevant.
Whether the proceedings are necessitated by failure to comply with a previous order
Directions made by the Court, whilst often so described, are erroneously described. The Court does not give direction it makes orders. Directions for filing documents, as they are described, are, in fact, orders of the Court. So much is acknowledged in the authorities referred to in my earlier judgment today, and by the High Court, no less.
An order to file a document is a court order which potentially carries penalty if a party is found to be in contravention. That is not an issue that I need to determine today, however, the listing on 24 April was clearly necessitated by failure to comply.
The fact that the listing ultimately became something else in addition, being the return date of an application in a case, does not obviate against the consideration of that factor in support of the application, as the proceedings being before the Court that day would not have come about but for non-compliance with an order.
Whether a party has been wholly unsuccessful
The wording of the provision is somewhat unhelpful as regards parenting proceedings. It is difficult, if not impossible, to ascertain what is or is not “success”. However, the test required for it to come into play is that Mr Hammer, as the person against whom an order for costs is sought, has been wholly “unsuccessful”. Without wishing to engage in a semantic exercise, the factor could not apply. Mr Hammer did not seek anything from the Court.
If the proceedings had been relisted by Mr Hammer rather than of the Court’s own motion on the basis of an application by him for adjournment of the final hearing or a further period in which to file material, and that application had been refused, then the provision might have some application. Indeed, it would not change the circumstance, however, that the costs on that day were occasioned, by reference to subsection (d), through a failure to comply with a previous order. However, it is not possible to gauge whether any person was successful or unsuccessful on that occasion, as there was nothing in controversy.
Whether a party has made an offer in writing
There is no evidence before the Court of any offer.
Such other matters as the Court considers relevant
The Court has already made a number of orders requiring that Mr Hammer pay funds to Ms Acton by way of costs. Those costs orders, it would seem, by reference to Ms Acton’s affidavit material and to the third party debt notice, otherwise analogous to if not the same as a garnishee order, would suggest that the costs that have been ordered to date total in excess of $5,500.
Those are costs which have been borne by Ms Acton and which have been expended by her or on her behalf. That further costs are incurred by her in the circumstances described above, and particularly when the existing costs orders have not been met in whole or in part, is simply unacceptable. Accordingly, I am satisfied as regards the inter parties costs application that an order is appropriate and will thus be made.
In turning to the application by the Independent Children’s Lawyer and as I have indicated, subsection 1 does not apply. Thus all issues are at large with no presumption against an order for costs.
In dealing with each of the subsection 2A factors I am satisfied that the above appropriately addresses them.
As regards Mr Hammer, he has submitted that he does not question the basis for the order being sought, and has indicated that “it sounds fair”. On that basis, I do not propose to treat it as an order by consent, but I do propose, by reference to subsection (g), to take that concession into account.
The real issue that then arises is whether I am precluded from making an order for costs in favour of the Independent Children’s Lawyer by reference to subsection 4. It provides:
In proceedings in which an Independent Children’s Lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the Independent Children’s Lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the Independent Children’s Lawyer.
Dealing with financial hardship first, I am satisfied that there would be financial hardship to Ms Acton. She is not in paid employment. She relies upon her extended family to meet the legal costs in these proceedings, and thus third parties would be required to meet any costs ordered as against Ms Acton, and/or, if they did not do so, it would be a liability that she would need to bear from her own meagre resources. Ms Acton has not, although there has been no basis for it to be done, filed a statement of financial circumstances.
However, Ms Acton is not in paid employment. She does not receive child support or any significant financial assistance from Mr Hammer. She has borne the costs of these proceedings as well as bearing the cost of both children from her Centrelink benefits.
I am abundantly satisfied on the above bases that Ms Acton would suffer financial hardship if an order were made against her.
As regards Mr Hammer and on the basis of his submission I could not be so satisfied. As he has indicated - he considers the order as sought to be “fair enough” and has otherwise indicated that whilst it may take him some time, he can and will meet an order if made.
That then obviates any order being made as against Ms Acton, as I am satisfied and thus find that she would experience financial hardship unless subsection 4 precludes the order.
In relation to Mr Hammer, however, the first condition is also still in play: the question as to whether Mr Hammer has received legal aid in respect of the proceedings. I am satisfied that he has not.
Mr Hammer has indicated that he has an extant grant of legal aid which has existed since his involvement in the proceedings in August/September 2011. However, I am satisfied that for the section to be in play Mr Hammer must be in receipt of legal aid with respect to the proceedings before the Court today.
There is no evidence to indicate what the terms of his grant are. Indeed, if he has not engaged an attorney, it is unlikely that there has ever been any extension up to and including this hearing, and that is the stage of proceedings for which costs are sought. Cursory examination of Exhibit ‘ICL 2’ makes clear that the costs sought are costs to the eve of hearing, together with a contribution to the expert’s costs, costs with respect to an interim hearing and instructing Counsel to appear today, as well as disbursements incurred with respect to the issue of subpoena.
The costs that are sought, as I have already indicated, are meagre and represent a tiny portion of the cost which I am satisfied the Commission would have incurred in providing legal services to represent the interests of these children pursuant to the section 68L order made and if costs were fully and properly time recorded by the Commission on a market rate basis or privately funded. Thus I cannot cavil at all with the quantum sought. Mr Hammer does not seek to do so.
However, in dealing with the issue as to whether Mr Hammer is in receipt of a grant of legal aid with respect to these proceedings and absent any evidence of the same, I am satisfied that what is required to invoke the protection of the section is some active engagement of legal representatives in the proceedings. Asserting a grant of aid that has apparently or is suggested to have existed since September 2011 but when Mr Hammer has, on all occasions that these proceedings have come before me, commencing in December 2011, appeared on a self‑represented basis, is disingenuous.
To be legally aided within the context of s.117(4), I am satisfied, requires some active representation in accordance with a grant if one exists.
Thus I am not satisfied that I am precluded from making an order for costs.
On the basis then that there is submission, (and I have chosen that term rather than consent), to an order for costs, I am satisfied that the order as sought, being a contribution of one-half of the Independent Children’s Lawyer’s costs, is appropriate.
Further costs
Consequent to the two judgments already delivered by me today with respect to these proceedings, an application for costs is made in terms as follows:
That the father pay the mother’s costs of and incidental to the proceedings from 4 April 2012 to date.
The costs, in fact, sought exclude certain aspects of work performed, particularly relating to an application in a case filed 20 April 2013 and a number of events or disbursements which have already been the subject of costs orders. It is sought that those costs would be as agreed or failing agreement that they be assessed. The costs are not today quantified.
The provisions that have already been considered by me relate to and apply to the application in its totality.
Counsel has fairly and appropriately not sought to submit that an order for indemnity costs by reference to authorities such as Colgate-Palmolivev Cussons Pty Ltd (1993) 46 FCR 225 would be made, and thus costs that are sought are on a party-party basis and by reference to the indicative scale in Schedule 1 of the Federal Circuit Court Rules 2005.
The additional consideration that is relied upon in support of the more expansive application is an offer of settlement forwarded to the father by letter, 28 March 2012. That offer attached draft terms of settlement which are expressed by the correspondence to have been drafted in accordance with the recommendations of Dr M in his report dated 16 March 2012.
The terms of settlement, whilst not identical to the minute of order tendered at the commencement of the trial, are so similar as to cause no real concern for me as to the resolution of the proceedings being substantially if not quite totally in accordance with the mother’s proposals.
The order for costs that is sought is based upon the timing of the offer of settlement and the suggestion that the matter could and should have been resolved at that point in time and in accordance with the draft terms of settlement. Further, it is submitted that the father, having failed to attend family dispute resolution in a prompt and timely fashion, has missed the opportunity for that settlement to occur.
Again, and by reference to the High Court’s decision in Re JJT; Ex parte Victoria Legal Aid, I am required to first find a justifying circumstance for departure from the general principle established by subsection 1 of s.117.
The issues between the parties, whilst I have clearly found favour with the mother’s proposals, have not been insignificant. Indeed, that would be contraindicated by the appointment of the Independent Children’s Lawyer and appointment of a Part 15 Expert.
What has arisen as regards the conclusion of the proceedings is a failure by Mr Hammer to place a case before the Court.
Whilst his response has not been dismissed summarily by reference to s.17A of the Federal Circuit Court Act 1999, his response has not been considered as part of the determination of the proceedings as the matter has been concluded on an undefended basis.
The relevant considerations under s.117(2A) include but are not limited to offers of settlement. There are certainly a number of Full Court authorities, which I have recently considered in a matter of Whitman & Hacking [2013] FCCA 356 (and which I incorporate herein), which indicate that significant and appropriate weight should be attached to offers of settlement.
However, these are parenting proceedings, and a myriad of other considerations apply. Amongst those considerations are:
a)Firstly, the financial impact upon the father, not ignoring the financial impact upon Ms Acton of which I have spoken a great deal today, of an order for costs. In short, it would financially crush him. The costs, while not quantified, could not be other than substantial, as the litigation has been on foot for a significant period, and there have been a number of court events, all of which have required attendance by Ms Acton’s legal representatives, while Mr Hammer has attended on a self-represented basis at least on each occasion that the matter has been before me.
b)Secondly, I must be conscious of the parental alliance between these parents. Whilst I have already found that their communication is fundamentally flawed and problematic, that is not to suggest that there is not some goodwill between these parents. It may be limited. It may be difficult to identify at times. But for the orders that have now been made by the Court to operate successfully in the future, these parties are going to need to deal with each other on some level, even if only by coming face to face at changeovers.
c)Thirdly, any order that financially crushes Mr Hammer will have an impact on these children. They will be in his care for periods of time, albeit significantly briefer periods than they are in Ms Acton’s care for the reasons as already discussed. Thus an order for costs which has the effect of so financially depleting Mr Hammer that he cannot accommodate himself, for instance, will have the effect of either rendering him incapable of spending time with the children in accordance with the orders that I have determined are appropriate and which Ms Acton has indeed advanced as appropriate and were thus proposed by her, or will create such inconvenience and such uncertainty as to those arrangements that the children’s interests may well not be met during those times. In those circumstances, I have some real concern.
d)Fourthly, I am conscious of the further costs and litigation that will occur between these parties if costs cannot be agreed. Those processes and costs are far from insignificant. There is no provision within the Federal Circuit Court Act for taxation of costs. It has never been included as part of the Court’s Rules and it has always been left to costs assessment by state bodies when costs have been orders and assessment has been required. In those circumstances, it would be necessary for a bill of costs in assessable form to be prepared, to then be lodged with a costs assessor and a further fee paid or otherwise addressed, for the bill to be served, for an assessment hearing to occur before a costs assessor, and then a certificate issued.
Further proceedings would then be required to enforce the costs as assessed and ultimately thus ordered. In those circumstances, I would be doing nothing to end litigation between these parties, litigation which has already taken its toll on each. In those circumstances, I am not satisfied that I could safely find a justifying circumstance. Lest I am wrong in that regard, I am not satisfied that an order for costs of unquantified amount at the conclusion of parenting proceedings would be just and equitable.
By reference to Parliament’s intent through reading speeches at the time of introduction of the Family Law Act in 1975 and amendment to the costs provisions subsequently, it has always been made clear that a party should be in a position to litigate and agitate a position with respect to the care and welfare of their children without fear that it would be financially crippling to them. The fact that this so often arises simply through parties funding their own representation, is problematic enough. To impose it at the conclusion of these proceedings would, in my mind, not only be disastrous but contrary to the spirit and intent of the Act.
Specific provisions are included to address summary dismissal of “hopeless” cases or to deal with vexatious litigation. Mr Hammer’s case did not attract nor was it suggested to attract those provisions.
Whilst it may well be said that Mr Hammer has created these difficulties himself, thus rendering the relief sought by Ms Acton as irresistible on an undefended basis, it is not to suggest, and I could not accept or infer, that he has not ever had an arguable case. He has raised matters which clearly the expert evidence of Dr M has not found favour with and that Ms Acton has not concurred with. However, he has ultimately failed to place a case before the Court at final hearing rather than failed to participate or advance a supportable position.
Thus I do not know what evidence he would have relied upon had he chosen to avail himself of the opportunity afforded to him to file material and conduct a case and participate more fully in these proceedings. Thus the decision to award costs, if made by me, would ignore and would in effect infer that Mr Hammer’s case was always doomed to failure and/or was always mischievously brought. I cannot take that step, and thus there is some real issue as regards justice and equity.
I have some real empathy for the position of Ms Acton. She has been dragged through litigation (albeit litigation she commenced) which can and should have been concluded at a much earlier stage. However, the litigation process has moved as quickly and as expeditiously as the preparation of evidence has permitted.
Thus whilst there has been a protracted delay, that has not largely been dictated by Mr Hammer. Inflation of costs most assuredly has occurred, through Mr Hammer’s failure to comply with certain orders, particularly orders for the filing of material. He will pay that price through orders for costs that have already been made, which now equal if not exceed the bankruptcy threshold, and thus he should be fully conscious and aware of the enforcement remedies now available to Ms Acton to enforce the totality of costs ordered in her favour. However, each occasion upon which it has been justified to make an order for costs, I am satisfied an order has been made.
I am not satisfied that the costs that have been incurred by either party, not only financial, can be appropriately compensated in a monetary sense, nor should I attempt to. As I have indicated, whilst I have great empathy for Ms Acton’s position in these proceedings, the Court does not proceed by way of misericordia. It makes decisions by application of the relevant statutory provisions as enacted by Parliament to the facts and circumstances of each case, and it was not Parliament’s intent that a party, purely through folly of failing to accept an offer which ultimately is a position with which the Court finds favour, should be ordered to pay costs.
Thus I make the following further orders.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 4 September 2013
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