Alley and Alley (No.2) - [2012] FMCAfam 1475

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLEY & ALLEY (NO.2)

[2012] FMCAfam 1475

FAMILY LAW – Application for adjournment of final hearing of trial concerning parenting arrangements for child aged five – proceedings hotly contested – background to proceedings – matters to be considered in adjourned application – child’s best interests paramount – application dismissed.

Family Law Act1975 (Cth)

Applicant:

MR ALLEY

Respondent:

MS ALLEY

File Number:

ADC 1711 of 2012

Judgment of:

Brown FM

Hearing date:

29 November 2012

Date of Last Submission:

29 November 2012

Delivered at:

Adelaide

Delivered on:

29 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Sekhon Lawyers

Counsel for the Respondent:

Ms Fuda-Duncliffe

Solicitors for the Respondent:

Jane Ekin-Smyth

ORDERS

The father’s application filed 23 November 2012 to adjourn the trial is dismissed.
The final hearing before Federal Magistrate Brown on 4 & 5 December 2012 at 10:00am is confirmed.

IT IS NOTED that publication of this judgment under the pseudonym Alley & Alley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1711 of 2012

MR ALLEY

Applicant

And

MS ALLEY

Respondent

REASONS FOR JUDGMENT

The matter of Alley is listed before me today as a result of an application in a case, which has been filed by Mr Alley (herein after referred to as “the father”). In his application, Mr Alley seeks the adjournment of a trial in proceedings involving his former partner, Ms Alley (herein after referred to as “the mother”), which are currently scheduled for 4 & 5 December 2012. Ms Alley has responded to that application today, and in short, she opposes the application.
The proceedings themselves concern final parenting arrangements for the parties’ child, [X]. [X] was born [in] 2007. Accordingly, [X] is a child who is a little over five years of age at the present time.
By way of background, on 6 July 2012, following a rigorously contested and heated interim hearing, I determined that [X] should live with each of his parents as follows: with his mother on Monday afternoons and during the day on Wednesday, as well overnight on Friday until 2 pm the following Saturday. But otherwise, he should live predominantly with his father.
That was a controversial decision, as I recall, from both parties’ perspectives. It was the father’s position, I think, that the mother was a manipulative person, who had used him and his family to gain citizenship in this country. Mr Alley further asserted that the mother was not greatly interested in [X] or his welfare. In fact he characterised her as an emotionally voluble and unstable person.
In the aftermath of what was both a recent, and I think, emotionally tumultuous separation, it was his initial proposal, as I recall, that [X] should continue to live predominantly with him, and that the mother should have limited time – preferably supervised time – with [X].
On the other hand, it was the mother’s position that it was the father who was the controlling person. She asserted that throughout [X]’s life to date and certainly prior to the parties’ separation, it was she who had been [X]’s primary carer. She denied that she was unstable. Rather she asserted that it was the father who had been, at times, violent towards her.
In those circumstances, it was her position that [X] should live predominantly with her and spend closely defined periods of time with his father. Accordingly, the positions of each of the parties were polarised in the extreme, with each asserting that the other parent was not a suitable role model for a child of tender years such as [X] and that each had significant deficits in his or her personality and parenting skills.
Underpinning that dispute was an essential dispute as to who had cared for [X] prior to the parties’ separation. The mother said it was she; the father said it was he.
At the interim stage, those difficult issues could not be resolved definitively. Against this very difficult background, I had to put in place the orders which I thought were likely to be best for [X], according to the various considerations set out in the Family Law Act.
At the interim stage I was troubled enough about the matter to withdraw and consider at some length what should be the appropriate outcome. As a consequence, I delivered a written judgment of about 20-odd pages, which attempted to summarise the evidence up to that point, particularly the areas of factual controversy between the parents, which were many.
In the judgement, I indicated that I was not prepared to impose an arrangement on the parties involving what lawyers commonly call, “sharing the risk”. That is in situations were both parties assert that there is a serious degree of risk associated with the parenting of the child by the other parent and therefore the court divides the child’s time between those parents in order to balance the risk of harm befalling the child concerned.
Rather, I determined to adhere to what had become a status quo since the parties separated, albeit one that the mother said had been imposed upon her, which was that [X] continued to live in what had been the parties’ former family home with his father.
However I also indicated that there needed to be a clear plan to regulate [X]’s care until a definite and specified time was appointed for final hearing. Accordingly at this early stage, after I had deliberated at length, I gave the parties the final hearing dates of 4 & 5 December 2012.
I did that advisedly. I wanted the parties to know that they had a date when each of their competing assertions about the past would be tested and subjected to scrutiny and, if at all possible, findings of fact made. The intention being that the orders which had been put in place would be subject to possible reconsideration, in about five months time, which was the earliest date available to me.
It was, I think, the clear import of what was a lengthy decision that I was gravely concerned about [X]. I was gravely concerned about [X] because if what the father said was true, the mother was a threat to [X] and his emotional well being. On the other hand, if what the mother said was true, the father was a threat to [X].
I was quite frank, I think, in pointing out to the parties that, at the interim stage, I could not resolve the significant and controversial issues arising between them. I think I indicated clearly that those issues were going to be determined at final hearing. As such, I was at pains not to allow the parties to think that the case would fall into some limbo, but that there would be a date when it would be dealt with.
It was also significant that I ordered that a family report be prepared. In the reasons I explained what is the purpose of a family report. A family report is a significant financial commitment for a Court such as this one.
I think it is no secret, and it will come as no surprise that, after the payment of salaries to staff and judicial officers in the Court, the Court’s major expense is funding the preparation of family reports. However such reports are an essential resource for the Court in its determination of disputes between parents about the wellbeing of their children.
I will never meet [X]. I do not know what he looks like; I do not know what his personality is; I do not know what his character is; I do not know what is special about [X]. I have only read about [X] in the affidavits which each of his parents have prepared for the case.
So a family report writer, in many ways, has an advantage over a person such as me, in that he or she is able to interact directly with the child concerned and see that child with each of his or her parents.
Because a family report is an intensive and somewhat expensive exercise, they take time to prepare. I think at the moment the time frame is about 12 to 14 weeks. I ordered that the report be released to the parties on or before 5 October 2012. Again, that was done advisedly. It was two months prior to the date fixed for trial.
A report has been prepared. The report has been prepared by Ms D. It was completed on 4 October 2012, and was released to the parties on 5 October 2012. So against a background of some urgency and difficulty, the Court has kept its side of the bargain. The schedule leading up to the final hearing in December has been kept from its perspective. The report has been released to the parties.
At this stage, of course, Ms D’s view; her opinion; her methodology; and any biases, either accidental or implicit, she may have; have not been tested or examined through any process of cross-examination or Court scrutiny.
I hasten to point out that Ms D does not decide cases like this; I do. It may well be that, after Ms D is tested through cross-examination or other relevant matters are put to her, she will change her view in the case. It was John Maynard Keynes who I think famously said, “When the evidence changes, my opinion changes,” and so it is often at times the case with family consultants and family report writers.
At any event, Ms D has recommended that the arrangements for [X], which were put in place on an interim basis, need to be changed. She has raised some concerns about [X]’s emotional wellbeing, whilst he lives predominantly in his father’s care.
In essence, Ms D is concerned that Mr Alley may be fixated on what he sees as the mother’s failings as a parent and she, (Ms D) is concerned that Mr Alley may lacks empathy for Ms Alley. As I say, the positions of the parties at interim stage were polarised in the extreme.
However, albeit that Ms D’s view has not been subject to scrutiny it is important that, at this juncture, she is expressing concerns for [X]’s emotional wellbeing under the current regime.
Significant resources were allocated, at the interim stage, by the parties, I think. They were, as I say, hotly contested. Whether that was a useful allocation of the parties’ resources is not for me to say at this stage.
It is the case, I think, that the mother, who is a person who was born in the Philippines and who has come to this country as a result of her relationship with Mr Alley, is not in a strong financial position, and is legally aided.
Mr Alley, at the interim stage, was represented by a well known firm of Adelaide solicitors who practice in many jurisdictions, including the family law jurisdiction. At the interim stage, he was represented by a very experienced counsel.
It would seem that he was legally aided, but I am not completely sure about that. He has certainly had support, in an emotional sense, from members of his family, particularly his father, who also provided evidence at the interim stage. At any rate, it would appear to be the case that Mr Alley, who has been unwell in the past with a seriousness illness, has had only limited employment, as a valet at the casino, I think, in the past.
I accept that he is not in a strong financial position. He applied for Legal Aid for the trial. It would appear to be the case that in assessing his application for Legal Aid some assessment has been made of the merits of his case. It is also likely that this assessment has been influenced by what Ms D has to say about the family. I do not know, that is conjecture on my part. But I have been provided with an affidavit today from Mr Alley which says that he has been refused Legal Aid, with the decision being made on 6 November 2012.
It is now the position that he wishes to be represented at trial. I can understand why that would be so. But his evidence is that he has not currently the financial means to pay for his own representation. He says he will have to do some saving to pay for his legal fees. He has also recently engaged new solicitors, who are coming to terms with the material in the file, which is extensive. He also wishes to subpoena documents and examine documents which may be relevant. As yet, he has not had time to do this. It is also the position, I think, that he wishes to subpoena a witness who may not be available next week.
These proceedings of course arise under Part VII of the Family Law Act dealing with the best interests of children. Although the proceedings are adversarial in nature and concern the rights of individuals who also happen to be parents, they are fundamentally an inquiry into what is the best outcome for [X].
The paramount consideration is [X]’s best interests, not the interests of either Mr Alley or Ms Alley. Ms D’s report raises concerns about [X]’s emotional wellbeing, under the current regime, which was put into place against considerable disputes about previous arrangements for his care and against a background of significant allegations made by both parties against the other as to his or her unfitness as a parent.
If the proceedings are adjourned, it is not likely that they will get a date for trial any earlier than June of 2013. That will mean that one year will have passed since the interim decision was made. I am concerned that an adjournment of that length will not be in [X]’s best interests.
In civil proceedings between parties, the ordinary rule regarding adjournments is if one party’s detriment, as a result of an adjournment, can be compensated by a payment of costs or an order for costs, the adjournment should be granted. But these proceedings have a different nature, given the best interests of a child are concerned.
To award costs in Ms Alley’s favour will not assuage either the Court’s concerns or Ms Alley’s concerns about [X]’s wellbeing, as it is her fundamental position that the interim arrangements were not appropriate ones for [X].
On the other hand, if Mr Alley is not granted the adjournment, it may have many consequences, some of which I may not be able to assess at this stage. The potential consequences of the adjournment are therefore somewhat conjectural. However, I think it likely that the following will occur.
Firstly, for obvious reasons, Mr Alley will be aggrieved that he has not got an adjournment and will feel that is unfair to him to be forced to be, in effect, his own lawyer, when he is not legally qualified. It is not in the interests of justice that any litigant has the perception that he or she has not been fairly dealt with.
Secondly, and more importantly, if he is compelled to present his own case, it may be the case that important evidence regarding [X]’s welfare does not come to light because he is not in a position to put it appropriately. Such a situation may have implications for [X]’s wellbeing.
Thirdly, I have to consider the interests of justice as a whole. If a person wants to be legally represented, he or she ordinarily is entitled to be represented, and the Court should accommodate such a desire. There is much at stake in these proceedings for each of the parties. They are emotionally fraught and difficult. The Family Law Act is not the simplest piece of legislation ever passed by the Commonwealth Parliament.
Ms Alley is going to be represented. The playing field in that sense potentially will not be a level one. The advantage will lie with

Ms Alley.
The matter is finely balanced, but at the end of the day these proceedings have been fixed for trial for a significant period of time. The parties were given the date for trial, at the earliest stage available to the Court, because they had each vociferously asserted that the case needed to be heard sooner rather than later.
A family report was ordered as quickly as it could be done, and it was released to the parties when the Court said it would be released. Neither party can say that they are ambushed by Ms D’s report. I have sympathy both for Mr Alley and for the Legal Services Commission of South Australia.
Public funds are limited. As such, they have to be carefully allocated. The Commission has to make many difficult judgment calls. There is an appeal process in respect of the refusal of Legal Aid. That administrative task is potentially subject to review. But the decision to refuse Legal Aid itself was not made in the shadow of the courtroom door. It was made about a month prior to the hearing.
I also have to think of the interests of other litigants. This Court is very busy. At times I feel it is too busy. If hearing time is not used, other litigants are delayed in having their cases heard. This is a high-volume Court. It was intended to be a high-volume court. When the Commonwealth Government set it up, it was hoped that it would deal with less complicated matters which would in more cases than not be finalised in six months of filing.
In this state, the court is now dealing with in excess of 95 per cent of matters filed in proceedings under the Family Law Act. It is not, I think, a complicated process of inference to deduce that this must mean that the Court is no longer dealing with less complicated matters alone, and as such it is now unrealistic to expect that matters coming before it will more often than not be concluded in six months from inception. As such the pressure for the Court to complete its work is becoming more rather than less acute.
At this time, due to increasing constraints on Legal Aid and the volume of work, it is not uncommon for parties to be unrepresented. The Court is well used to dealing with unrepresented litigants, and the Family Law Act itself was amended to bring about procedures which were less adversarial in nature, at least in part in recognition of this phenomenon.
Having said that, again I reiterate that I accept that proceedings in this Court are difficult, bruising, confronting and daunting, even for a party who is represented by the most skilful of counsel. For an unrepresented person, they must be very confronting and daunting indeed. In this regard I note that Mr Alley, in the past, has not been in the most robust of health.
As I say, it is a finely-balanced matter, but at the end of the day I have come to the view that Ms Alley cannot be compensated by an award of costs. Rather [X]’s best interests remain paramount in these proceedings and it would not be in [X]’s best interests for these proceedings to be adjourned, possibly for a lengthy period of time, against a background of orders which were recognised as provisional in nature.
For those reasons, I will dismiss the father’s application to adjourn the proceedings and will confirm the trial for next week.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: 29 November 2012