Alderson and Alderson

FAMILY COURT OF AUSTRALIA

ALDERSON & ALDERSON			[2007] FamCA 1169
FAMILY LAW - CHILDREN – adjournment of trial – costs
Family Law Act 1975 (Cth)
APPLICANT:	Ms Alderson
RESPONDENT:	Mr Alderson
INDEPENDENT CHILDREN’S LAWYER:	Levy Partners
FILE NUMBER:	NCF	1118		of	2004
DATE DELIVERED:	24 September 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATE:	24 September 2007
REPRESENTATION
COUNSEL FOR THE APPLICANT:	D A Harris
SOLICITOR FOR THE APPLICANT:	Aitken McLachlan Thorpe
RESPONDENT IN PERSON:	Mr Alderson
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	N T Macpherson
INDEPENDENT CHILDREN’S LAWYER:	Levy Partners

Orders

That the hearing is adjourned to resume part-heard at 10.00am on 5 November 2007.
That leave is granted to the father to file and serve such affidavits and/or witness statements that he desires to rely upon on or before 4.00pm, 8 October 2007 and such affidavits and/or witness statements are limited to Orders 8(c) and 8(d) of Orders made 1 June 2007.
That in the event of the father failing to file and serve such affidavits or witness statements upon which he seeks to rely in accordance with Order 2 then the matter will proceed for determination on the evidence adduced before me, subject to such application for leave that the father may make supported by an affidavit and determined either by me, or in my absence another Judge.
That leave is granted to the independent children’s lawyer to issue subpoenas to produce documents directed to:
(a)the principals of P High School, P Public School, K Public School, and
(b)the Commissioner of New South Wales Police Service.
That leave is granted to the mother’s solicitors to issue subpoenas to produce documents directed to:
(a)Dr D to produce clinical notes in relation to the father for the length of time that he has been a patient, and
(b)the Proper Officer of S Company to produce records of employment and notes of any incidents in relation to the father's employment for the period January 2003 to January 2005.
That leave is granted to the parties and their legal representatives to inspect all documents produced on subpoena subject to any claim for privilege that may have been made.
That the father pay:
(a)the costs of the day for the independent children's lawyer's in the sum of $2,002.00;
(b)the costs of the day for the mother on a party/party basis of $2,700.00.
That the father comply with Order 7 on or before 5.00pm, 30 November 2007.

NOTATION:

A.The father has informed the Court that he wishes to withdraw from the proceedings. I informed the father that hopefully he will reconsider his position, however ultimately the decision about withdrawing or not is entirely his.

IT IS NOTED that publication of this judgment under the pseudonym Alderson & Alderson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF1118 of 2004

MS ALDERSON

Applicant

And

MR ALDERSON

Respondent

REASONS FOR JUDGMENT

These proceedings were set down for a continuation of the Less Adversarial Trial (“LAT”) for four days.
On 1 June 2007, I made directions for the filing and service of any further affidavit material, provision of witness statements of evidence, and the issue of subpoenas. That followed after the issues for further determination had been crystallised. On that occasion, the father appeared in person and the mother was represented, as well as the presence of the independent children's lawyer. The directions hearing followed the provision of a single expert's report by Dr W, psychiatrist.
Amongst the directions were that the parties file and serve their affidavits and/or witness statements no later than 14 days prior to the date for resumption of the hearing.
Consequently, the parties had until 10 September 2007 to comply with the directions. That amounted to a period of just over three months.
The father has not filed and served any affidavits or witness statement.
Upon my inquiry of the father as to whether he was content to rely upon the evidence that he gave on the first day of the hearing, he informed me that he wanted to file further affidavit material. However, two or three weeks ago his notes to assist him in preparation of that material had become lost in the course of moving a box of those notes from his then residence to his parents' residence where he now resides.
The father states that due to a combination of the loss of that material, being a single parent, working full-time and being unrepresented he had insufficient time to prepare the affidavits that he intended to have completed, filed and served.
The father was not able to explain to me why he had failed to prepare, file and serve any of that material in the period of approximately three months that ensued after the directions were made on 1 June 2007, other than to repeat again that he has been an unrepresented litigant.
Therefore, the father seeks an adjournment to enable him to file the affidavits which he has as yet failed to do.
The adjournment application is opposed by both the mother as well as the independent children's lawyer. Each of them emphasise that in the context of these parenting proceedings there are serious issues for determination which should be addressed and determined as soon as possible.
The father has had ample time within which to file and serve his affidavits should he have wished to do so, even allowing for the difficulties which he says he has encountered in the last two or three weeks.
Counsel for the independent children's lawyer also stressed that the parties and the children appear to have been under emotional stress and there are issues of the father's potential or alleged alienating behaviour, which should be addressed. To his surprise obviously as well as to mine, I was informed that the eldest child of the parties aged 15 years was present at Court.
The father confirmed to me that the eldest child was present through no inducement by him and that that the eldest child wished to give evidence. I explained to him the law in that regard.
Pursuant to s 117(1) of the Act, the general principle in this Court is that each party bears his or her own legal costs.
However, that principle is subject to s 117(2) of the Act which gives the Court a discretion to make an order for costs should there be a circumstance which makes it proper to do so.
In my view there is such a circumstance, namely that the adjournment application only arises solely due to the father's neglect to file and serve affidavits for which he himself is responsible.
Accordingly, a term and condition for any adjournment will include a potential order for costs.
However, the matter does not rest there, I must also consider all relevant matters which arise under s 117(2A). The relevant matters include, but not limited to, the following:
(a)neither of the parties is legally aided, save and except for the independent children's lawyer;
(b)each of the parties has modest financial circumstances which place them under varying degrees of financial difficulty.
There has been generous time provided for the parties to file and serve such further affidavit material and witness statements that he or she wishes to rely upon in accordance with the directions made on 1 June 2007.
Notwithstanding, that the father has been unrepresented, in my view a period of approximately three and a half months is ample time for him to have filed and served the material that he wished to rely upon, notwithstanding the difficulties that he claims he has had in the last two or three weeks.
Consequently, a factor to take into account is that the father has, in my view, been negligent and irresponsible in the failure to prepare, file and serve the material which he claims he seeks to rely upon.
I also take into account the effect on not only the parties, but potentially the children, as well as the impact upon Court resources in the event that this matter has to be adjourned.
From inquiries made by me, there fortunately are other alternatives, namely for four days commencing on 29 October 2007 or in the following week commencing 5 November 2007. The latter dates appear to be the ones suitable to the parties and to the expert witness Dr W, following inquiries made by the independent children's lawyer.
The costs that are sought are $2,002.00 for the independent children's lawyer and $5,489.00 for the mother's legal representation. The latter is in accordance with a costs agreement. It does not represent party/party costs.
In my view, this matter is not one which falls within the narrow band of cases that attract the principles which apply for indemnity costs, although it is certainly an application of real substance in this particular case.
In any event, I have to take into account, amongst other things, the financial circumstances of the parties. That factor has swayed me from potentially making an order for indemnity costs, as opposed to party/party costs.
On a party/party basis, I was informed by counsel for the mother and the independent children's lawyer that the amount is estimated to be approximately half, that is about $2,700.00.
I have determined that the proceedings be adjourned, albeit reluctantly.
I do so because I have to take into account, amongst other things, the impact not only upon the parties, but also on the four children and balancing those matters with the fact that there is a litigant who is unrepresented and notwithstanding the explanations that have been made to him, may not have been as familiar with practice and procedure as one might expect from somebody who is represented.
In seeking to achieve that balance, I have taken into account that the father has been the sole cause of the need to make an application for adjournment. He has had ample time within which to file and serve his material prior to the last two or three weeks. There is no excuse of substance that has been put forward by him.
There are issues in this case involving, in particular, allegations of child alienation. There are also issues regarding disturbing behaviour by one or more of the children. All of those matters being outlined in the affidavit of the mother and the expert report of Dr W dated 5 March 2007.
Given all of those matters and the fact that this hearing could resume within a reasonable time, I have reluctantly concluded that the adjournment should be granted.
However, it will be on terms that the father pay the costs thrown away, solely due to his irresponsibility, of the independent children's lawyer and of the mother.
Those orders will be on a party/party basis and the amounts involved will be $2,002.00 for the independent children's lawyer and $2,700.00 for the mother’s legal costs.
In terms of the adjournment, the matter will be adjourned part-heard to resume on 5 November 2007 for four days.
I will make further direction about the filing and service of affidavits by the father. In that regard, given the long period of time that has already elapsed since 1 June 2007, I will make an order that the father file and serve such affidavits and witness statements as he may propose to rely upon in accordance with the directions made 1 June 2007 no later than 4.00 pm 8 October 2007.

I will further direct that in the event of the father failing to comply with this extended time, then the matter will proceed before me on the evidence currently before me. No further time will be provided to the father to file and serve any further material, unless an application is made by him and leave is granted either by me or, in my absence, by another Judge.
I have heard submissions in relation to the period of the time for the father to comply with the costs order.
The father clearly has no property which he can immediately realise in order to fund the whole or any part of the costs order. However, the father may be able to access his superannuation on the basis of hardship. It is entirely a matter for him as to whether he makes application to the Commissioner for Superannuation so as to obtain consent to enable him to do so. The amount involved which he says he has accumulated is approximately $16,000.00. The father does have some disposable income, albeit significantly less than $700.00 per week given his needs for living expenses for himself and the two children of the marriage who are currently living with him.
Taking all of those matters into account, and the fact that the adjournment was occasioned solely due to the father's lack of attention to matters that he was required to attend to, as well as the mother's modest financial circumstances as a result of which she is assisted on a regular basis by the maternal grandfather, I will extend the time for payment to 30 November 2007.
I grant leave to the independent children's lawyer to issue subpoenas to produce documents directed to the Principals of P High School, P Public School, K Public School and to the Commissioner of New South Wales Police Service.
I grant leave to the parties and their legal representatives to inspect all documents produced on subpoena, subject to any claim for privilege that may be made.
I grant leave to the mother's solicitors to issue subpoenas to produce documents to:
(a)Dr D to produce his clinical notes in relation to the father for the length of time that he has been a patient.
(b)The Proper Officer of S Company to produce records of employment and notes in relation to any incidents in relation to the father's employment for the period January 2003 to January 2005.
I note that the father has informed me that he wishes to withdraw from the proceedings. I informed him that hopefully he will reconsider his position. However, ultimately the decision about withdrawing or not is entirely the fathers.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate

Dated: 4 October 2007

[2007] FamCA 1169

24 September 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Discovery

Privilege

Appeal