Aoida and Aoida

[2013] FamCA 674

FAMILY COURT OF AUSTRALIA

AOIDA & AOIDA [2013] FamCA 674

FAMILY LAW – Adjournment of trial with costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Aoida

RESPONDENT: Ms Aoida

INDEPENDENT CHILDREN’S LAWYER: Ms Carter

FILE NUMBER: MLC 11153 of 2010

DATE DELIVERED: 13 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 May 2013

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Jenkins

SOLICITOR FOR THE RESPONDENT: Perry Weston

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Carter

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

MacGregor Solicitors

Orders

1. That all outstanding applications for final orders are adjourned for mention at 9.00am on 6 August 2013 to see whether the case is ready for trial.

2. That the husband file and serve all further affidavit material upon which he intends to rely by 4.00pm on 26 July 2013.

3. That the husband pay the wife’s costs fixed in the sum of $2750 thrown away this day.

4. That the Independent Children’s Lawyer and the wife have leave to issue subpoenae.

5. That there be leave to the husband to approach the Registrar if he wishes to issue subpoenae and can establish relevance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aoida & Aoida has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11153 of 2010

Mr Aoida

Applicant

And

Ms Aoida

Respondent

REASONS FOR JUDGMENT

1. This is an opposed application for an adjournment of a trial that was listed for hearing for two days.  The applicant for the adjournment is the husband, who is the respondent in the proceedings.  The wife is represented by counsel, as is the Independent Children’s Lawyer.  Both the Independent Children’s Lawyer and the wife oppose the adjournment.  It is with great hesitation and some reluctance that I am going to grant the husband’s application, and I do so for the following reasons. 

2. The first is that he says that the evidence given by the wife in cross-examination at a committal for trial in the Melbourne Magistrates’ Court was different to that which she gave evidence about in her trial affidavit in these proceedings which she filed in February 2013.  The second is that there is a transcript of, but not the original VATE tape, and the husband’s view is that the child has been either manipulated or was not telling the truth.  The third is that he wants to get a lawyer, because apart from the obvious difficulties of a self-represented person trying to deal with a case as complex as this, he points to the fact that in the cross-examination of his wife in the committal, she was difficult to get answers from.

3. Ipso facto, he would have difficultly dealing with her himself.  There is also, added to that, the usual problem of the power disparity between the alleged victim and the alleged perpetrator, such that the wife would have to be cross-examined by the person she says she fears.  Whilst all of those would normally not necessarily give rise to an adjournment, I am concerned that this is a case where the evidence of the expert is that there should be no time between the husband and his children.  I note there has not been any control for a long time.

4. The expert suggests a number of things need to be done.  There is no indication of any evidence of what impact the expert’s suggestions has had on the husband, let alone on the children.  Suffice to say, for the reasons that I have expressed to the parties about my concern that the Court would not be able to get the bottom of the situation, it is appropriate that I take into account that the husband should be given an opportunity to call proper evidence.  It is quite distressing for the wife to have to face another adjournment, or another delay, but it is equally stressful for the Court, with its limited resources.

5. It is also difficult for the Court with its limited resources where lawyers have been on the record and none of these issues have been raised.  Notice had not been given to the wife’s witnesses to be here today, bearing in mind her affidavit material was filed some weeks ago.  That is totally unsatisfactory and I expect better.  The second witness that the wife wants to rely upon is a police officer, who is on leave and cannot be contacted.  He should not have been expecting to come to court today, as no one had given him that notice.  I am not at all surprised that he is doing what police officers deserve to be able to do on their time off.

6. Absent the important evidence, which I am told is relevant but disputed, it would be unwise for the Court to start a case where there is a very real prospect that if the evidence does not change, these children will lose the right to have a significant parenting figure in their life. 

7. On that basis, notwithstanding the opposition of the Independent Children’s Lawyer, and the wife, I think it is appropriate that I grant the adjournment application.  The difficult question that then follows, is whether it should be adjourned for a short or long period of time.

8. Having regard to what I have just said, I could not be at all confident that this case will be ready for trial in a very short space of time, particularly as the husband indicated to me earlier this morning that he would need about six months to get the necessary funds for a lawyer.  As I pointed out, legal representation is a privilege not a right, and many people are representing themselves in this Court.  In a case where there is a prospect that these children will be excluded from their father’s life, he needs to think very carefully about what he is doing and come up with some proposals.  His focus on simply cross-examining the wife to prove that she may not be telling the truth may not necessarily solve his problem.

9. The Court has to be very careful about what resources it allocates.  There are lots of other cases that are equally demanding and deserving of the Court’s time.  This case has had a long time in its gestation.  Having regard to my concern about it being ready, what I propose to do is to adjourn it to 9 o’clock on 6 August to see if it is ready for trial.  If it is not ready on that day, then it will be a case that will be most likely going to the bottom of the list.  I am going to allow the husband to file any further affidavit material he relies on, or wants to rely on, but he has to do that by 4 o’clock on 26 July. 

10. By 6 August, the wife will have had an opportunity to read, as will the Independent Children’s Lawyer, any material that he intends to rely upon.  On 6 August at 9 o’clock if I can be convinced that this case is ready for trial and that all witnesses are going to be available at various times over the ensuing months, then there is a prospect that this case might be listed for final hearing before the end of the year.

11. The wife then makes an application for costs thrown away for today.  The costs are $2750, which is counsel’s brief fee.  The wife is not funded by legal aid, and therefore is paying for this out of her own pocket.  The husband shrugs his shoulders and says he does not have any money, but I bear in mind, he had lawyers acting for him only up until a few days ago.  He would be well aware of the costs that are likely to be incurred.  There is no logical reason why the wife should be out of pocket at all, regardless of what her financial position is. 

12. Section 117 of the Family Law Act1975 (Cth) provides that in proceedings in this Court, each party shall bear their own costs. Section 117(1) provides that if the Court is satisfied that there are circumstances that justify a departure from that principle, then the Court can make an order for costs, but in so doing, must take into account the matters set out in section 117(2A). In this case, there are no legal aid considerations.

13. Criticism has to be levelled at the husband.  He did not prepare himself for today.  I have to take into account the financial circumstances of each of the parties.  Even if the wife received whatever assets she did out of the property settlement, it is not suggested that she is flush with funds, and as I indicated, there is no reason why she should be out of pocket for $2750 being her counsel’s brief fee.  The husband says he is working as a trainee tradesman, and no doubt he would find it difficult to find that sort of money, but I see no reason in the circumstances why the wife should be out of pocket.  I propose to make an order that the husband pay the wife’s costs thrown away today, fixed in the sum of $2750.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 May 2013.

Associate:

Date:  17 July 2013