Angelis & Regoli (No 3)
[2023] FedCFamC1F 549
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Angelis & Regoli (No 3) [2023] FedCFamC1F 549
File number(s): ADC 5352 of 2019 Judgment of: KARI J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – PARENTING – Ex Tempore Reasons – adjournment application – where both parties have a grant of legal aid pursuant to section 102NA – where the husband and the Independent Children’s Lawyer join in an application for adjournment of the trial and the mother opposes – where both parties’ solicitors were recently appointed –whether an adjournment is necessary to enable the parties to adequately prepare for trial – application granted. Legislation: Family Law Act 1975 (Cth) Cases cited: Angelis & Regoli [2022] FedCFamC1F 450
Angelis & Regoli (No 2) [2022] FedCFamC1F 1071
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 29 June 2023 Place: Adelaide Solicitor for the Applicant: Daniel John Lawyers Solicitor for the Respondent: Starkie Family Law Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5352 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANGELIS
Applicant
AND: MS REGOLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
29 JUNE 2023
THE COURT ORDERS THAT:
1.That the final hearing in the matter presently listed for 10 days to commence on 24 July 2023 be vacated.
2.That forthwith the Independent Children's Lawyer do advise Ms Y that she will not be required during the July sitting to give evidence in the proceedings.
3.That the proceedings be adjourned for further mention and case management on 24 July 2023 at 10.00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUSTICE KARI
INTRODUCTION
These reasons relate to issues arising in the context of the parties’ competing parenting applications with respect to the child X born 2015.
BACKGROUND
The proceedings have a relatively significant history before me over approximately the last 18 months. I have delivered two written decisions in the matter,[1] the most recent of which arose as a consequence of a hearing in December of last year in relation to the mother's time spending with the child.
[1] Angelis & Regoli [2022] FedCFamC1F 450; Angelis & Regoli (No 2) [2022] FedCFamC1F 1071.
I do not propose to traverse the history of the matter other than to say that I have the history of the matter in the forefront of my mind.
Significantly, against that background, on 23 August 2022, I made orders setting the matter down for trial to commence on 24 July 2023 with a ten-day trial estimate. Additionally on that occasion, I made orders directed to a range of issues including the trial process, case management and necessary trial directions.
Since that time, however, a number of things have occurred. As I indicated, I heard argument in the matter on 19 December 2022 in relation to the child's living and time spending arrangements. Significantly, I made orders that provided for the child X to live with the father and to spend supervised time with the mother at the Z Contact Centre. I do not propose to repeat for the present moment the reasons behind the making of that order. Significantly, however, I adjourned the matter for mention and trial directions on that occasion to 24 May 2023.
Following that hearing and the making of those orders, a number of factors of some significance have occurred. Importantly, both of the parties have become self-represented in these proceedings, and those events are relatively recent. Indeed, at the hearing on 24 May 2023, the father was self-represented, but the mother, at that stage, remained represented by both her solicitor and counsel. For reasons that are not germane to the present issues before the Court, the proceedings were adjourned at the hearing in May 2023 to deal with matters relating to a Notice to Admit that had been filed at the father's end.
The proceedings next came before me on 16 June 2023. By that stage, the father continued to appear on his own behalf, but the mother was represented pursuant to a grant of funding pursuant to the Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’). I was advised at that hearing that the father had made an application pursuant to the Scheme, but as yet, a grant of funding had not been allocated.
Since that hearing, a matter of some 13 days ago, there have been further developments. Firstly, the solicitor that had then been allocated for the mother pursuant to the Scheme has since ceased acting for the mother. Additionally, both of the parties have now had representation appointed pursuant to the Scheme. At the mother’s end, this is evidenced by a Notice of Address for Service filed yesterday (28 June 2023). Otherwise, each of the parties are present at Court today together with the solicitor that has now been allocated to each of them.
What I am told today by the solicitor for each of the parents is that they have very recently been appointed pursuant to the Scheme - the mother's solicitors, yesterday and the father's solicitors, perhaps three or four days ago.
Importantly, and of some significance to me, both legal representatives have indicated to the Court that when the grant of funding was made and they were appointed pursuant to the Scheme to represent their respective clients, they were not advised that the matter had a trial listing commencing on 24 July 2023 and that trial evidence would need to be filed within relatively short compass.
The omission of conveying that information to the solicitors now appointed pursuant to the Scheme has led to some ancillary issues today.
THE ADJOURNMENT APPLICATION
Significantly, for reasons related to those matters and those which I will traverse shortly, I now have an oral application made, effectively jointly, by both the father and supported by the Independent Children’s Lawyer to vacate the trial. The mother's position about an adjournment of the trial is less clear. While her solicitor has formally opposed the application, I suspect that there is a certain reality and an inevitability about the application in any event.
One of the many reasons advanced at the father's end in support of the application to adjourn the trial, is not only those matters that I have just referred to, but significantly, from the solicitor for the father's perspective, his grave apprehensions that he is not going to be in a position to secure counsel for trial purposes. Indeed, that is a submission with which the mother's solicitor agreed, both of them referring to their knowledge and recent experience in obtaining counsel for trial purposes pursuant to the Scheme and the limited pool of counsel available to accept instructions and funding pursuant to the Scheme, together with the very short notice leading up to the trial, which is less than a month away.
Additionally, from the father's perspective, given the very recent granting of funding pursuant to the Scheme, the father's solicitor has not yet had the opportunity to peruse what is a voluminous file nor to read any of the judgments delivered in these proceedings. That is a position that is shared at the mother's end by her solicitor. Significantly, while that may well result in a limited ability to put meaningful submissions to the Court today, what it also goes to is the ability to prepare the matter properly for trial between now and the trial listing.
All of those factors from the father's end have culminated in the application to adjourn the trial that has now been made.
From the Independent Children’s Lawyer's perspective, there are some further matters which are agitated in support of the adjournment application. One of them relates to the funding for the expert to give evidence at the trial in these proceedings. While I understand that the Legal Services Commission of South Australia has indicated a preparedness to fund the expert Ms Y’s attendance for trial purposes for one day only, the Commission is not in a position to extend funding to any of her preparation costs, which she estimates to be in the vicinity of no less than $1,200 excluding GST. They are matters which the parties are ultimately likely to be called upon by the Independent Children’s Lawyer to fund.
Additionally, from the Independent Children’s Lawyer's perspective, there are concerns about the witnesses to be called for trial purposes and the focus and the time for attention to be given by each of the parties to the preparation of their case for trial. They are matters which trouble the Independent Children’s Lawyer and which also ground the support of the adjournment application that has been made.
From the mother's perspective, it appears inescapable that all of the matters that have been raised by both the father and the Independent Children’s Lawyer will affect her preparation for trial. Compounding that position is that her solicitor has now indicated to the Court that he shall be on leave for the month of July 2023 and that he will seek to withdraw from these proceedings.
CONCLUSION
While the mother formally opposes the adjournment application, when all of the above matters are combined, with very deep frustration and regret on my part, I consider that there is an inevitability about the adjournment of the trial.
Indeed, both of the legal representatives now appointed pursuant to the grant of funding pursuant to the Scheme indicated to the Court during their submissions that had they known that the trial was listed in July 2023 and that there would be a need to swiftly file trial material, they would have refused to accept the grant and take instructions in the matter.
All of the matters that have been raised with the Court regrettably lead me to a conclusion that the trial must be adjourned.
The mother's solicitor today has indicated that the mother may well likely file an application for time spending with the child. I have indicated to the mother's solicitor that if that application is filed, it will be dealt with on its merits in due course. The mother, however, grounds her opposition to the trial being adjourned in her desire to increase her time-spending with X beyond the regime currently provided for by the orders made on 19 December 2022.
As I said, however, procedural fairness issues (enabling time for the proper preparation of the parties’ case and to arrange Counsel) dictates, unfortunately, that the matter needs to be adjourned, and, as I say, that is a regrettable outcome.
For all of those reasons, the Court makes the orders as set out at the commencement of these Ex Tempore Reasons for Judgment.
NOTE: These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 29 June 2023
0
2
0