Bracewell and Southall

[2009] FamCA 112

FAMILY COURT OF AUSTRALIA

BRACEWELL & SOUTHALL [2009] FamCA 112

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Bracewell

RESPONDENT: Mr Southall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8972 of 2007

DATE DELIVERED: 12 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lever, Duty Solicitor

COUNSEL FOR THE RESPONDENT: Ms A.E. Carter

SOLICITOR FOR THE RESPONDENT: Robinson Gill

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr James

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER OFarrell Robertson McMahon

Orders

1. That the application for an adjournment is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bracewell & Southall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 89972 of 2007

MS BRACEWELL

Applicant

And

MR SOUTHALL

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the first day of the less adversarial trial in this matter.  It comes via the usual pathway from a registrar.  Registrar Riddiford heard the matter on 11 December 2008.  This morning, Mr Lever, as the duty solicitor involved in other matters within the court complex, has been kind enough to come into the courtroom and indicate that he has instructions from the mother via Victoria Legal Aid’s S office.  His instructions which I will now detail are in fact not accepted by me as being accurate and that is no reflection on Mr Lever or on Victoria Legal Aid.

2. He said that his instructions were to apply for an adjournment on the basis that the mother had been unable to travel because she had an unreliable vehicle; that she had no access to train service because of the bushfires, and her support person was attending a funeral.  Adding to her woes is the problem that her spectacles are broken.

3. The bottom line in the application for the adjournment, however, is that she has said to her lawyers that she did not know the case was listed for a trial.  I reject that latter concept on the basis that on 11 December 2008 the record of the court shows that not only did the mother appear in person but she was represented by counsel, presumably briefed by a solicitor Joe Mammone.

4. Registrar Riddiford made orders for today to be the first day of the trial.  He then set out that the applicant - in this case that is the mother - was to file any amended application for final orders, setting out with precision the orders she was seeking, by 12 January.  It is important to note that that order has not been complied with. 

5. I have also drawn to everyone's attention that on 7 January 2009 the independent children's lawyer issued about 12 subpoenas to various organisations, all of which were seeking information either about the mother or about the child C, or again the child B who is the child of the mother born in September 2007.

6. The importance of that process is that Mr Mammone filed a notice of ceasing to act on 22 January, signed on 21 January 2009.  I must therefore conclude that Mr Mammone was at least aware of the fact that the independent children's lawyer was getting prepared for the final hearing.  Mr Mammone's notice of seeking to act sets out that he sent the notice to the mother at an address in S.  Mr Lever has confirmed that Victoria Legal Aid has been told by the mother that that is her address.

7. Also important in the notice of ceasing to act is the fact that on the notice it is shown that the next hearing is 12 February 2009 at 11.30 am for the first day of the less adversarial trial.  There can be therefore no suggestion that the mother was not aware of the fact that today was the first day of the trial.  On that basis, I do not accept her claim about the absence of knowledge of the hearing.

8. I then turn to the question of whether or not it is acceptable to adjourn a proceeding on the basis of a party being unable to travel because of an unreliable vehicle and no access to train services because of bushfires.  Whilst I am conscious of the trauma that many people in the community are undergoing at the moment because of the bushfires, there are ways and means of parties getting to court, and the suggestion of the mother seems to me to be implausible.  There are a number of public transport systems of which I am aware between S and Melbourne.  I am also aware that other persons in various proceedings in the last few days, in cases that I have been involved in, have been able to get to court from bushfire ravaged areas. S is not one of those areas.

9. Importantly, however, it is not satisfactory to simply give those instructions to the lawyer and expect those instructions to be simply accepted.  There is no affidavit material from the mother along the lines of Mr Lever's instructions and on that basis I reject those grounds for an adjournment.

10. It is always with great hesitation that a court, particularly in a parenting matter, refuses an adjournment because any information in relation to the welfare of the children assists the judge in making the ultimate decision.  However, in circumstances such as this where there were significant proceedings on 19 August 2008 before the senior registrar - and I am told that none of those orders have been carried out - it is another basis for me to say that natural justice has been provided because the mother knew the proceedings were on and has done nothing about getting ready for the hearing.  The father has been put to considerable inconvenience in doing what he was required under those orders and has come along today ready to proceed.

11. Justice for one party must mean justice for the other as well.  For me to give the mother the indulgence that I do not think she deserves, may very well work an injustice to the father.  More importantly, in this case - having regard to the fact that no orders of 19 August have been carried out that would enable some sort of relationship to be established between mother and child - it seems to me that it is in the child’s interests that I put this matter to rest once and for all.

12. On that basis I decline to grant the adjournment.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate: 

Date:  24 February 2009