Baden and Baden

[2016] FamCA 565

FAMILY COURT OF AUSTRALIA

BADEN & BADEN [2016] FamCA 565

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Application for adjournment refused.

Family Law Act 1975 (Cth) s 69ZN

Jarrah & Fadel [2014] FamCAFC 14

APPLICANT: Mr Baden

RESPONDENT: Ms Baden

INDEPENDENT CHILDREN’S LAWYER: Mr Whelan

FILE NUMBER: PAC 5979 of 2014

DATE DELIVERED: 13 July 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 11 July 2016

REPRESENTATION

APPLICANT – LITIGANT IN PERSON:

COUNSEL FOR THE RESPONDENT: Ms Shearman

SOLICITOR FOR THE RESPONDENT: Soden Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. The father’s oral application made today for the proceedings to be adjourned is dismissed.

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 Baden & Baden 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 PARRAMATTA

FILE NUMBER: PAC 5979  of 2014

Mr Baden

Applicant

And

Ms Baden

Respondent

REASONS FOR JUDGMENT

1. This is an application for an adjournment of parenting proceedings which have been fixed to commence today and relate to the parties three children, B, who is 14, C, who is 12 and D who is six.

2. The application is made by the children’s father, who is currently serving a sentence of imprisonment following a plea of guilty to a large number of offences including recklessly wounding the mother, sexually assaulting her on numerous occasions, using an offensive weapon with intent to intimidate her, assaulting one of the children, occasioning him actual bodily harm and numerous firearms offences. He has been sentenced to a term of imprisonment of 10 years and nine months. He is not eligible for release on parole until August 2022. By this stage the two eldest children will be adults. The father has been in custody since October 2014, but pleaded guilty to the various offences in the Local Court and District Court at a number of court events in 2015 and 2016. As I understand it, the father pleaded guilty to the most serious offences in the District Court recently. He was sentenced on 21 June 2016.

3. The parenting proceedings were commenced by the paternal grandmother in December 2014 seeking orders for her to spend time with the children each weekend for a block period of six hours on an interim and final basis. The mother has at all times sought orders that she have sole parental responsibility for the children, that they live with her and that the father have no contact with them. In response to the paternal grandmother’s application the mother sought that the children have no contact with her.

4. In August 2015 a family consultant interviewed the family members and prepared a report dated 8 September 2015. At this stage it appears that the father had pleaded guilty only to the summary firearms offences. The family consultant recommended that the mother hold sole parental responsibility for the children, and the children have no contact with the father or paternal grandparents.

5. Following the release of the Family Report, the paternal grandmother withdrew from the proceedings and filed a Notice of Discontinuance in November 2015.

6. The father continued to seek orders that the children “must reside in Australia”, not leave Australia without his consent, that the paternal grandparents “have access to their grandchildren at least one weekend per month”, that the children “contact their father and/or their grandparents at their leisure and that their father and/or grandparents can respond accordingly,” that the mother’s “psychiatric stability be evaluated every 6 months” and that “approval from the Family Court be required for the mother allow a new partner” to reside in the premises with the children. The father had previously also sought property orders, but confirmed at the outset of the hearing and in a compliance check prior to the hearing that he no longer sought those orders.

7. On 24 November 2015 trial directions were made for five days of hearing to be fixed by the list clerk at some date in the future. It was also noted that if the father wished to vacate any hearing date, he must do so by filing an Application in a Case. The trial directions required that any amended Application and affidavits in support of the orders sought were to be filed by 28 days prior to the commencement of the hearing.

8. The hearing was fixed to commence today by the list clerk at this Registry and the parties were notified of the listing by letter dated 31 March 2016. The letter notifying the father was sent to him at E Prison where he is in incarcerated and in oral evidence given today in connection with his adjournment application he agreed that he had received that letter.

9. On 14 June 2016 at a readiness check before a registrar it was noted that the father had only recently entered a plea of guilty to the outstanding charges and that his sentence proceedings were fixed for 21 June 2016. The father had not filed his trial affidavit in accordance with the trial directions and it appeared that the mother may also be seeking to vary the orders to file some updating evidence.

10. The matter was listed before me on 24 June 2016 to ascertain whether there were any difficulties in relation to preparing the matter for trial given that the trial directions had not been complied with. It was confirmed that neither of the parties were seeking property orders. At that procedural court event the father appeared by telephone and each party sought some further time for the filing of their affidavits. Directions were made that each party was to file and serve a single consolidated affidavit of themselves by 28 June 2016. It was also noted that in the event a party did not file an affidavit in compliance with the direction that they would not be permitted to rely upon it. The father said that it was unknown whether he would have legal representation at the hearing. The trial dates were confirmed.

11. Today, at the commencement of the proceedings the father sought an adjournment on the basis that he wished to obtain legal representation. The father had filed an “affidavit” as directed though it was more akin to an application as it set out his proposed orders. He also indicated he wished to rely on an affidavit filed earlier in the proceedings. He gave some short oral evidence concerning the steps he had taken to obtain legal representation. He agreed that he was aware his previous solicitor had filed a Notice of Ceasing to Act on 15 March 2016. Although the father initially said that he first became aware that the matter was listed for trial to commence today at the start of June he subsequently agreed that he had known since early April that the matter was listed for final hearing to commence today. He later agreed that he had received the letter from the Court dated 31 March 2016. He said that he “didn’t do anything” after receiving this letter. He then said that he “filled out a legal aid application” on an unspecified date. The father said that he did not feel confident enough representing himself in these proceedings. He said he sought an adjournment to “have the best possible chance of maintaining a relationship with [his] children”, did not have the capacity to represent himself and needed all the help he could get.

12. The mother and the Independent Children’s Lawyer (“ICL”) opposed the father’s application. Both noted that the father had had ample time to prepare the matter for trial and he had provided no explanation for his failure to do so. He also provided no details about whether he had in fact lodged the application for legal aid that he had “filled out” or the stage that application had reached. It was also submitted that in these circumstances where the father is to be incarcerated for such a long time for such serious offences that legal representation would not in all likelihood make any difference to the outcome in the matter. It was noted from the ICL’s outline of case that the ICL supported the mother’s application. It was also submitted that the family consultant’s recommendation, which was in line with the mother’s proposed orders was made prior to the father’s convictions, that is, at a time when the mother’s position amounted only to “allegations” made by her. In other words, there was no prospect that the family consultant’s recommendations at the final hearing would be more favourable for the father. The ICL submitted that the Legal Aid Commission did apply both a means test and a merit test to applications for legal assistance in parenting matters.

13. Of the greatest significance however, according to both the mother and the ICL, is that the children have been profoundly adversely affected by the father’s conduct and the associated court proceedings, including criminal proceedings in which they were to have given evidence. Each of the children has been diagnosed with serious mental health conditions as a result of their circumstances, including PTSD. The two older children have also been admitted to hospital on more than one occasion and the Infant and Child Mental Health Service has been heavily engaged in their care. According to documents from mental health agencies working with the children there is a relationship between the deterioration in the children’s condition and significant events related to these proceedings. For example, following the appointment with the family consultant for the purposes of the Family Report when the children were observed in their interactions with their paternal grandparents, C and B each experienced an exacerbation of their psychological symptoms and have each required quite extensive admissions to hospital. On 16 June 2016, two days after the court compliance check B was readmitted with an increase in her symptoms, including some serious self-harm. It is submitted by the ICL and the mother that any further delay in these proceedings would have a devastating effect on these children who have already been significantly adversely affected by exposure to and being subjected to family violence.

The Law

1. In Jarrah & Fadel[1] the Full Court considered an application for leave to appeal by a father from an order by a trial judge refusing to vacate the final hearing of parenting proceedings between the parties. In that case it is clear that the Court approved the approach of the trial judge in considering the application to vacate the hearing. Ainslie-Wallace J, in refusing leave to appeal, said at [56] “[i]n my view his Honour’s determination that the interests of justice, which he clearly and plainly recognised are wider than the husband, required the hearing to proceed was correct.”

   [1][2014] FamCAFC 14.

2. So far as any injustice towards the father is concerned, in my view he has not adequately explained, or indeed explained at all, why he did not take any steps to engage a lawyer after he became aware three months ago that the matter was listed for final hearing today. This is especially so when he had been aware at all times that the mother was seeking orders that she have sole parental responsibility for the children and that there be an order that he and the paternal grandmother spend no time with the children. He was also aware that his mother had discontinued her application for parenting orders.  There was also a specific order made that any application to vary the trial dates was to be made by filing an Application in a Case.

3. Further, at the court event on 14 June 2016 the father appeared to be in the main pursuing an application that he be provided with further time to file his affidavit, which was granted. At that court event he said he did not know if he would be legally represented or not.

4. The father provides no details concerning the date on which his application for legal aid was lodged or whether that has occurred. He has in my view not been deprived of any opportunity to obtain legal representation in the proceedings.

5. In my view, the impact of these proceedings upon the children’s well-being is critical. It appears from their responses given to the family consultant that they were well aware that their paternal grandmother was seeking to spend time with them. The older two children expressed very strong views in that assessment that they did not wish to spend time with the grandmother and appeared to feel betrayed at their grandparents’ failure to validate their experience of harm at the hands of the father. As the paternal grandmother has herself withdrawn from the proceedings, the only possibility that such an order may be made is pursuant to the father’s application. If the proceedings were to be vacated and may not be determined for many months, if at all this year, the children would have to live with the possibility that an order may be made for time with their paternal grandmother at some time in the future.

6. In the notes of the mental health professionals who have dealt with C and B there is a connection between the exacerbation of their mental state and these proceedings. For example, in the notes relating to B’s admission in June 2016 it was noted, “current worsening was probably related to upcoming court case about her father.” It may be that the reference to an “upcoming court case” relates to the father’s criminal proceedings. However, as those proceedings relate to the father’s criminal actions against her mother and brother there is, in my view, a connection between these proceedings and B’s mental condition. Similarly, in the discharge summary related to C in September 2015 it is noted that “his presentation occurs in the context of severe trauma by his father from the age of two, ongoing conflicts in the family home with siblings and upcoming legal proceedings in relation to this abuse.”

7. A number of the provisions in Division 12A, which relate to a child related proceedings, are also particularly relevant to this application. In particular, pursuant to Principle 1 in s 69ZN the court “is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.” Pursuant to  Principle 5 the proceedings “are to be conducted without undue delay…”.

8. In this matter there is no factual dispute that the father is serving a very lengthy sentence for criminal conduct towards the mother and one of the children, which can only be described as family violence of the most severe order to which the children were exposed or subjected. Furthermore, the family consultant recommended against the orders sought by the father, even prior to being aware of his pleas of guilty and convictions for the more serious offences. It is difficult to envisage that the father would be granted legal aid if he has applied for it or that legal representation will change the outcome of these proceedings. In circumstances where the impact of the father’s conduct and of the proceedings themselves upon the children has also been of the highest order, in my view the interests of justice require that the application for an adjournment be refused.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 July 2016.

Legal Associate: 

Date:  13 July 2016