Begley and Danesh

[2015] FamCA 1084

FAMILY COURT OF AUSTRALIA

BEGLEY & DANESH [2015] FamCA 1084

FAMILY LAW – Interim decision in procedural matters in a parenting case – duties of legal practitioners – duties of independent children’s lawyer – failure to comply with procedural orders – solicitor with conduct of the proceedings and independent children’s lawyer required to attend court to explain – notice of issue to Victoria Legal Aid.

APPLICANT: Mr Begley

RESPONDENT: Ms Danesh

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms R Badenoch

FILE NUMBER: MLC 4943 of 2009

DATE DELIVERED: 7 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Trapski Family Law

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weiner

SOLCITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Logie Smith Lanyon

Orders

IT IS ORDERED THAT

1. This matter be adjourned for mention before me on 12 October 2015 at 9.00 am (“the adjourned date”).

2. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

IT IS DIRECTED:

1. That the solicitor with conduct of the matter for the mother and the independent children’s lawyer attend Court in person on the adjourned date.

2. That the mother attend at Court in person on the adjourned date.

IT IS FURTHER ORDERED THAT:

1. The father’s costs of this day be fixed in the sum of $1,250 and payment of them by any other party be reserved to the adjourned date.

IT IS FURTHER DIRECTED THAT:

1. A copy of this Order and my reasons for decision this day, when transcribed, be sent by the Docket Registrar to the Proper Officer of Victoria Legal Aid.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Begley & Danesh 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 4943 of 2009

Mr Begley

Applicant

And

Ms Danesh

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes before me for mention at the instigation of the practitioners for the father, and rightly so, because a hearing is due to commence before me on 26 October 2015.  Mr Nicholson of counsel who appears on behalf of the father has knowledge of the matter and has clearly given attention to the preparation of it for trial.  His instructing solicitor wrote to arrange the mention, saying that there were a number of matters that had arisen in the case that may have an impact on the hearing.  I think that was an understatement. 

2. Today, the father attends Court with his solicitor and, as indicated, with his counsel.  Ms Cussen, solicitor, appears on behalf of the mother.  The mother isn’t at Court.  When asked where the mother was, Ms Cussen said that she was not present and had not been given a reason, but then indicated that the mother had told her that she was at a job interview. 

3. Ms Weiner of counsel appears on behalf of the independent children’s lawyer, who is Rebecca Badenoch, solicitor.  Ms Weiner says that she received her brief “last night”.

4. Yesterday, a family report of some 39 pages was released.  I have read it.  Ms Weiner hasn’t read it, because Ms Weiner’s instructing solicitor did not include it in her brief.  The solicitor for the mother says that the mother has read it.  Mr Nicholson has read only part of it.  The father has read the document.

5. On 20 May 2015, the matter was quite carefully timetabled in anticipation of a hearing to take place on 26 October 2015.  In particular, the parties — the mother and the father were required to file all of their evidence by way of affidavit or proofs of evidence and any amended application or response: 

   a)as to the applicant father by 30 July 2015; 

   b)as to the respondent mother by 20 August 2015.

6. It was discussed on the day that the orders were made and is clear by the way in which the orders were structured that both the mother and father’s evidence was to be before the Court prior to the family consultant commencing the assessment process, and most certainly prior to the completion of her report.  Paragraph 6 of the order made on that day makes it clear that the report would be commenced “not before 20 August 2015 and be released by not later than 5 September 2015”.  As it happened, the report was not released until 5 October 2015, so there has been even a greater opportunity for the mother to have filed and served her evidence. 

7. The next matter to which I will turn and which was the subject of careful discussion on the day that the orders were made was that paragraph 10 provides that the mother and the father would participate by themselves and their legal advisers in “any roundtable conference which the independent children’s lawyer appoints through Victoria Legal Aid Family Dispute Resolution Service in the week commencing 12 October 2015”. 

8. Indeed, it was not considered that the independent children’s lawyer would arrange for a dispute resolution conference to take place in the week of 12 October 2015, which happens to be next week.  It was predicated on the fact that the family report would be released prior to that, and, in fact, as it happens, it will have been released seven days prior to that conference. 

9. Nobody at the bar table can tell me whether a conference has been convened, from which I discern that no conference has been convened, because Victoria Legal Aid would be likely to have written to the participants if a mediation had been booked in.

10. It is a woeful state of affairs. 

11. The solicitor who appears for the mother says that “this isn’t my file”. That’s not an appropriate submission to make to this Court. If someone appears in this Court, they should know what is happening with the file. Counsel for the independent children’s lawyer is similarly ill-informed. I note that rule 1.08(3) of the Family Law Rules 2004 provides:

    (3) A lawyer attending a court event for a party must:

    (a) be familiar with the case; and

    (b) be authorised to deal with any issue likely to arise.

    Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).

12. The solicitor who appears for the wife says that the failure of the mother to file her evidence by 20 August 2015 was “an oversight by my office”. 

13. On the adjourned date, I require each party to the proceedings to have evidence as to what steps were taken in relation to reminding the mother’s practitioners of their obligations under the orders.  The mother has primary responsibility for filing documents with any solicitors she says to render their services in a professional manner. In a slightly different context I addressed the practitioners on 20 May 2015 as follows:

    What is important, though, is that no one be under an illusion that representation will necessarily dictate whether there can be a hearing; that is, just because one party is represented because they pay for it or because they’re currently in receipt of a grant of aid doesn’t mean that if something happens and they cease to be represented that whatever deadlines for the filing of material or the attendance at court for a final hearing would stop.  The obligation to prepare your case rests with the litigants, not with their practitioners.  The practitioners are employed by the litigants to help them prepare their case, but if the representatives or the practitioners aren’t retained, still that party has to do the work themselves.  Is that fairly clear, Ms Macgregor?

    MS MACGREGOR:  Yes, your Honour.

14. I have no doubt that it is the responsibility of the independent children’s lawyer to ensure that proceedings are conducted at an efficient pace and to do so for the benefit of the child.

RECORDED:  NOT TRANSCRIBED

1. That much, in my view, is apparent from section 68LA and from the provisions of Division 12A of Part VII of the Act and the responsibility of practitioners generally. 

2. The Family Law Rules provide, at 1.04, that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances. I add two more things. Proceedings should be resolved at a reasonable cost to the community as well so assistance from Victoria Legal Aid must be used prudently and not unnecessarily. Furthermore, the Rules set out the obligations of parties, lawyers and the court in the implementation of the Family Law Act 1975 and family law proceedings generally.

3. In McKinnon & McKinnon [2005] FMCAfam 516 I discussed the role of an independent children’s lawyer to ensure that a matter can proceed to a timely conclusion and what consequences flow when the independent children’s lawyer fails or neglects to do so.

4. Mr Nicholson, for the father, points to various practical matters which arise as difficulties given the non-compliance by the mother with the order that all of her evidence and any amended application or response be filed by 20 August 2015.  These include the fact that there are some 16 witnesses on subpoena and he is not able — and the father’s practitioners are not able to discern who will be —– which of those witnesses will be required to actually give evidence, because it is not apparent from any material filed by the mother whether she concedes what they would say. 

5. I noted when reading the family report that the report-writer said that she had not looked at subpoenaed documents.  That at the time puzzled me somewhat, but it means also that the report itself did not discuss the matters in the subpoenaed material and, inferentially, that the family consultant didn’t discuss any matters in the subpoenaed material with the mother or the father.  I agree that if the mother had complied with the orders for the filing of her affidavit material and any amended response it may be apparent as to what evidence would actually have to be called at the hearing and what witnesses would need to be available for cross-examination. 

6. The next matter was that the family report makes clear that the mother had the assistance of an interpreter during the assessment interviews.  My recollection of the report is that the report-writer observed that there was some difficulty in the expression of the mother but that she did not necessarily consider it to be linguistically based.  I noted with interest the assessment of the family consultant that the mother appeared to obtain some personal or emotional comfort or support from the presence of the interpreter.  That’s not what interpreters are for.  However, Mr Nicholson quite correctly points out that if the mother wants an interpreter during the hearing that will prolong the hearing time.

7. Mr Nicholson points to the fact that the mother has not previously used an interpreter in these proceedings.  I don’t know whether or not that is correct.  Looking at an affidavit filed on behalf of the mother and sworn or affirmed by her (it’s not apparent which) on 8 January 2015, I note that the document was not executed or sworn with the assistance of an interpreter.  It’s a document of 44 paragraphs in length but with significant annexures, including a statement given by the mother to Victoria Police on 24 October 2014.  That statement is 12 pages long.  On the 12^th page, it is recorded that the statement was taken from the mother at 3.29 on 24 October 2014 and signed by a Constable of Victoria Police.  There is no indication on that statement that the mother had the assistance of an interpreter in that interview process or in the process of signing her statement.  There are various text messages annexed to that affidavit upon which the mother relies, together with emails.  All of those documents are in the English language. 

8. I don’t know whether the mother will need an interpreter.  In my Court, she will only be entitled to have an interpreter if an interpreter is required for language purposes.  But if an interpreter is required for language purposes, it is absolutely her entitlement to have one.  These are the matters to which attention should be given before the matter can proceed, and these are the matters which will have to be addressed by the responsible practitioners on the next return date.

9. The father is currently spending time with the child B, who is seven years of age, for four out of 14 nights from Thursday until Monday each fortnight.  I discern from the family report the father seeks a change of residence of B so that B resides with him predominantly and does not have more than four days a fortnight with the mother.  The family report writer’s recommendations do not support the father’s case;  however, the father, and B, are entitled to have the father be able to run his case and not be delayed in doing so by non-compliance by any other party with their obligation to file documents.

10. I will adjourn this matter and require that the solicitor who actually has conduct of the file on behalf of the mother, the mother, and the independent children’s lawyer attend Court in person.  On that day, they should be prepared to make submissions in relation to the case.  They should also be prepared to make submissions as to why they should be entitled to charge Victoria Legal Aid for the work in this matter which is associated with this mention, which appears to me, as a preliminary view, to arise out of a delinquency in their conduct of the matter.

11. I will adjourn this matter to Monday, 12 October 2015 at 9 am in Court. 

12. I direct that the solicitor with conduct of this matter for the mother and the independent children’s lawyer attend Court in person.  And I further direct that the mother attend Court in person. 

13. Ms Cussen, the solicitor from the firm on the record for the mother informs the Court that an interpreter was arranged for the family report assessment interviews on the initiative of Child Dispute Services and that the mother does not require an interpreter for the purpose of participating in these proceedings and giving evidence. 

14. Somewhat belatedly, counsel for the independent children’s lawyer drew my attention to the fact that on 30 July 2015 the independent children’s lawyer wrote to each of the parties and inter alia pointed out that no material had been received by the mother.  I don’t understand the relevance of Ms Weiner’s reference to that letter as the mother’s material wasn’t required until 20 August 2015. 

15. The only other document that Ms Weiner referred to was a letter from the father’s solicitors pointing out that the mother’s material was outstanding.  The letter was sent on 24 August 2015.  That was an appropriate communication, it being four days after the due date for the filling of the mother’s affidavits.

RECORDED:  NOT TRANSCRIBED

1. Finally, the father seeks a reservation of his costs of today.  I am prepared to do that.  A determination of liability for payment of costs, and by whom any such costs ought be paid (whether it be the parties or the practitioners) should await the practitioners having an opportunity to be heard, as well as the mother having an opportunity to be heard.  However, the quantum of the costs is a matter that I can determine today, and I do.  Mr Nicolson seeks costs in the sum of $1250.  He says that his client is a private client.

RECORDED : NOT TRANSCRIBED

1. The Family Law Rules schedule 3 scale of costs provides that an attendance of less than three hours, for example, of procedural hearing or summary hearing is from $237.06 to $1110.82.

RECORDED : NOT TRANSCRIBED

1. Mr Nicholson’s brief is marked at $1250.  I note that Mr Nicholson’s instructing solicitor is at court, and has been for the last hour.  The costs for a solicitor to — a lawyer to attend court is to $230.78 per hour.  In the circumstances, the composite claim for costs at $1250 is, in my view, reasonable, and I will fix the costs in that sum today, but reserve the issue of any liability for payment of those costs by any other party. 

2. So the remaining order is that the father’s costs of this day be fixed in the sum of $1250, and payment of them by any other party be reserved to the adjourned date.

RECORDED : NOT TRANSCRIBED

1. It seems to me that Victoria Legal Aid should be made aware of the conduct of these proceedings from the perspective of the representation of the child’s interests and any assignment of legal aid for representation for the mother.  I direct that a copy of this order and my reasons when transcribed be sent to the proper officer of Victoria Legal Aid. That should be done by the Docket Registrar or under her supervision.

2. On the return date the practitioners who appear to explain the manner in which she/they conducted these proceedings may satisfy me that nothing is amiss. Come what may, Victoria Legal Aid should have the notice of the outcome of that mention as well.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 October 2015.

Legal Associate: 

Date:  9 October 2015