Attia-Haik and Macaione

[2018] FamCA 204

FAMILY COURT OF AUSTRALIA

ATTIA-HAIK & MACAIONE [2018] FamCA 204

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has applied to vacate parenting proceedings to a later date as the father has proceedings on foot in the Federal Court in relation to immigration which are to be heard in the same week – Where the father is currently without legal representation and in immigration detention – Where the interests of justice warrant the hearing dates being vacated to a date to be fixed.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

APPLICANT: Mr Attia-Haik

RESPONDENT: Ms Macaione

INDEPENDENT CHILDREN’S LAWYER: Ms Robertson

FILE NUMBER: SYC 5394 of 2013

DATE DELIVERED: 23 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 23 February 2018

REPRESENTATION

APPLICANT HUSBAND IN PERSON: Mr Attia-Haik

SOLICITOR FOR THE RESPONDENT: Mr Cohen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Robertson

Orders

1. The trial fixed to commence over five days on 5 March 2018 is vacated.

2. The proceedings are listed at 10.00 am on 4 June 2018 for the making of directions as to the final hearing of parenting proceedings.

3. The Court notes the oral application of the Independent Children’s Lawyer for the costs thrown away in respect of the hearing listed to commence on 27 February 2017 and for the hearing listed to commence on 5 March 2018 including cancellation fees in respect of the single expert, to be paid by the father.  Those applications are adjourned to a date to be fixed and if no other date, the final hearing of the proceedings between the parties.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5394 of 2013

Mr Attia-Haik

Applicant

And

Ms Macaione

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings that have been listed for hearing over five days, commencing on 5 March 2018.  Trial directions were made on 10 August 2017 for a trial over five days commencing on a date to be allocated.  The parties were advised in January of this year that the hearing was to commence on 5 March 2018.  Advice was received from the solicitors on the record for the father that the allocated dates were acceptable.  He has subsequently contacted the Court and made an application to vacate the dates.  That application is opposed.

2. There were earlier trial dates fixed and on 24 February 2017 a hearing listed to commence on 27 February, was vacated.

3. Ultimately, the question for the Court is one about the interests of justice.  The father says that he is the subject of an order made by the Minister for Immigration that he leave Australia.  He has proceedings on foot to review that decision, and, from what he says, those proceedings are next listed before the Federal Court, at first instance, on 8 March 2018.  That is, in the middle of the week of the upcoming parenting trial.

4. The father has provided written submissions.  He says that, in effect, he cannot concentrate on two proceedings, in different Courts, in the same week.  He has different solicitors and counsel retained in the Federal Court proceedings to those that were instructed in the Family Law proceedings.  He says that health issues that he has previously referred to, and in respect of which some objective evidence was provided, have been exacerbated and that does not assist him in relation to preparation.  Soon after the directions were made in August last year, he was taken into custody, and he has been held in a detention centre since.  He says that has impaired his capacity to instruct lawyers, to prepare documents, and to earn an income, which would be the only source of funding for his legal representation.

5. Importantly, the father says that he has only recently been advised by his family law barrister and solicitor that they would no longer act for him.  A Notice of Ceasing to Act was filed by his solicitor on 5 February 2018.

6. In these proceedings the father seeks to have a meaningful relationship with his child.  He is currently not having any time with his child.  I gather the mother might be in receipt of Legal Aid.

7. The competing prejudices in relation to an adjournment of the hearing are:

   ·Granting an adjournment would mean a significant cost to the public purse, in terms of the preparation undertaken by the mother and the Independent Children’s Lawyer (“ICL”).  This would be the second time a trial is abandoned in these proceedings.  The preparation for hearing has now been undertaken twice - in relation to the February 2017 and March 2018 hearings.  Some of that work would be lost.  However, as I said to Mr Cohen in relation to the expert, sadly this is not a dynamic situation in respect of a relationship between a father and a child.  There may be little required by way of updating material.

   ·It is not unremarkable that the father is in detention.  As I say, the interests of justice are the primary concern for me.  While the Courts, in decisions such as Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, have recognised that there are interests beyond the interests of those involved in a particular piece of litigation that should be taken into account by a Court in considering something that would add to the delays and burdens across families affected by Court lists in a jurisdiction, independent of the issues between the parties in a particular matter, justice must be done and be seen to be done for the parties in the subject proceedings.

   ·Although there is no recent medical evidence, Mr Cohen informs me that the father’s health concerns have been verified to some extent in the past.

   ·The background facts suggest that there is likely to be some complexity in the parenting dispute.

   ·It is not unremarkable that there would be two proceedings, involving the same party in two different superior Courts of record, in the one week.

   ·The overarching reality is that if the father is ultimately unsuccessful in relation to his immigration status, it may be that, sadly, there is no significant utility in Family Law proceedings at all.

   ·Courts jealously guard access to themselves.  The needs of a person who is under a level of legal disability, should be protected.

   ·There is no suggestion that any of the facts that are presented today are uniquely the fault of the father.

   ·Orders were made in August last year against trial dates to be allocated in the future.  Less than two months before the commencement date of the trial, the parties were informed of the March hearing dates.  It is vexing that the solicitors then acting for the father indicated that he was happy about the date; but they have ceased to act.  The father is now left without legal representation, in immigration detention, facing proceedings of great moment in the same week that was allocated for the parenting trial.

8. On balance, it seems to me that the facts, notwithstanding the mischief that has been caused, warrant the hearing dates being vacated.

9. The problem for the parties is that, this having happened twice, I will be reluctant to allocate new trial dates until there is a greater level of comfort that a hearing will actually proceed.  That might mean that the Court would have to be satisfied that the father’s immigration status is settled.  Now, it might be that there is a positive result for the father in the Federal Court proceedings, that there is no appeal by the Minister, and therefore that the issue of the father’s immigration status is resolved in fairly short order.  If there is a decision at first instance by the Federal Court and that is taken on appeal, either by the Minister or the father, that could involve the processes of an intermediate appeal court, through the Full Court of the Federal Court, and then, potentially, I suppose, an appeal to the High Court.  That process could occupy many months.

10. I note that an oral application has been made today on behalf of the ICL for the costs thrown away in respect of the hearing listed to commence on 27 February 2017 and for the hearing listed to commence on 5 March 2018, which, in relation to the ICL, involve cancellation fees in respect of the single expert.  The application is that the father pay those costs.  I will adjourn those applications to a date to be fixed and, if not before, to the final hearing.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 February 2018.

Associate: 

Date:  5 April 2018