Bradbury & Lander (No. 4)

[2021] FamCA 379

FAMILY COURT OF AUSTRALIA

Bradbury & Lander (No. 4) [2021] FamCA 379

File number(s):	CAC 239 of 2017
Judgment of:	GILL J
Date of judgment:	7 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – application for adjournment – application for psychiatric assessment of the father – applications for adjournment and for psychiatric assessment refused – trial to proceed.
Legislation:	Family Law Act 1975 (Cth) ss s 69ZN, 102NA
Number of paragraphs:	32
Date of hearing:	7 June 2021
Place:	Canberra
Solicitor for the Applicant:	Self-representing
Counsel for the Respondent:	Mr Haddock
Solicitor for the Respondent:	Infinity Legal
Solicitor for the Independent Children's Lawyer:	Ms Burgess

ORDERS

CAC 239 of 2017
BETWEEN:	MR BRADBURY Applicant
AND:	MS LANDER Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	7 JUNE 2021

THE COURT ORDERS THAT:

1.The application for adjournment is refused. 

2.The application for psychiatric assessment of the father is also refused, as it is not demonstrated to be warranted at this stage in the context of there being a report prepared by a single expert. 

3.The consideration of any contravention applications or further interim disposal of the matter is deferred to the end of the trial of this matter so as not to derail the trial. 

4.The trial will proceed.

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. This matter concerns an adjournment application made by the mother shortly before the trial was due to commence.  The first occasion that an adjournment was sought was made by her about 10 days prior to the date of commencement of the trial. 

2. What is sought by the mother is to allow a further three months to prepare material, with her offer of an undertaking that if she has still not prepared her material for the trial that the trial should proceed without it. 

3. She further seeks that the Court should now hear an interim reversal of primary care application which would allow the mother to feel that Y, who is the child the subject of the proceedings, is safe.  The mother says that her concern for Y is so heightened that it prejudices her participation in the trial. 

4. The mother also seeks to have the father psychiatrically assessed, despite a previous single expert psychological assessment of both parties and multiple family reports being prepared in the matter. 

   THE CONTEXT OF THE APPLICATION

5. These proceedings commenced in the Federal Circuit Court in 2017 and were transferred to the Family Court of Australia on 19 March 2018.  There have been a large number of interim hearings in relation to the matter during the time that it has awaited trial. 

6. On 27 August 2020 the matter was listed for its first day of trial to commence on 20 November 2020.  The mother was then directed to file her trial material by 29 October 2020.  She did not.  That trial date was then vacated in that circumstance. 

7. The mother was further directed to file her trial material by 20 November 2020 and, although it is not pivotal to this matter, my recollection is that she indicated that she would be able to do so.  She did not. 

8. On 25 November 2020 a tentative trial date of 7 June 2021 was indicated with directions for the mother to file by 19 April 2021.  She did not.  By this stage the mother had repeatedly been advised that if she did not file she may have no material to rely upon. 

9. The proceedings came before the Court in February 2021 in the context where the mother had received legal assistance pursuant to arrangements relating to s 102NA of the Family Law Act 1975 (the Act).  The solicitor who then appeared for her indicated that the grant was insufficient to enable him to prepare the material for the trial, as well as conduct the trial.  The mother was advised by the Court that she should continue her preparation of her affidavit material. 

10. The matter was again before the Court on 6 May 2021 and the warning to her was reiterated that if she did not file her affidavit material she may be left with no evidence for her trial.  Despite the fact that as of 6 May 2021 the deadline for the filing of material had passed, the mother was granted leave to file her affidavit material, although the question of whether she would be able to rely upon it was a matter to be later determined in the context of when it was that she might file and what it was that she might file.  As noted, the mother applied for an adjournment in May 2021. 

11. It should be observed that in August 2020, when the first allocation of a deadline for the filing of material was advised to the mother, her then application was that the filing of material be deferred until 2021, although that request was not acceded to in August 2020, it was ultimately acceded to when she was given until April 2021 to file her material. 

12. The mother has now filed affidavit material for her trial this morning, being the first morning of the trial.  I have not read that material but have observed that it constitutes in excess of 130 pages of substantive affidavit, without counting any annexures or exhibits that may be associated with it.  The mother, in describing that affidavit, describes it as being incomplete and that it fails to deal with matters which she says are essential to the disposal of the proceedings.

13. It may be seen that it will be a matter for argument at the commencement of the trial whether or not the mother will be able to rely upon that affidavit.  I acknowledge immediately that there is potential for that to be refused, and for the mother to have no trial affidavit to rely upon it should the trial be conducted today. 

14. Further context is that the mother has been diagnosed as having ADHD, autism and a form of PTSD.  The diagnoses are supported by Dr K, her treating psychiatrist, and also Dr V, this report is at Exhibit M1 of today's proceedings.  Dr V says

    Ms Lander has diagnoses of an autism spectrum condition and attention deficit disorder.  These affect her executive function and ability to communicate in written form, particularly with extensive fact-based material.  While she is capable of producing such material accurately, it takes her much longer than most people to gather and present information. 

    I would support this been taken into consideration, regarding written submissions and related deadlines. 

15. The two issues that the mother presses in relation to her adjournment application is, firstly, that it takes her much longer to prepare material and hence she requires a further three months. 

16. Secondly, that she is vulnerable to the impact of triggering, for example, been triggered by emotional circumstances that she says surround the commencement of the trial and which inhibit her capacity to engage in the trial.  The mother asserts that she is not in a mind to properly participate in the trial and also that she has not been given sufficient opportunity to do so.

17. In terms of opportunity to participate, in so far as that involves the preparation of material for the trial, although it is clear that the mother has not filed until today her affidavit material for the trial, and noting that she says even now it is incomplete, it cannot be seen that that is due to a lack of opportunity.  It may be noted now that it is in excess of nine months since she was first directed to file her material.  That circumstance has been coupled with repeated warnings to her that if she did not file her material she may be left with no material to rely upon, and ultimately also reflected the mother's initial position that her filing of material should be deferred until sometime this year, being the position that she pursued on 27 August 2020.  I note that ultimately, her filing deadline was delayed until April 2021 acceding to that initial request.  Neither the material produced by Dr K nor Dr V points to inadequacy in these opportunities that have been given to the mother.

18. The mother also presents in a distressed manner and asserts that her level of distress is preventing her from participating in the proceedings, even though she now has legal representation, the Legal Aid Office of the ACT recently having come on board in the matter in the last few weeks and having engaged counsel who has met with the mother this morning. 

19. I am not satisfied that the level of distress that she speaks to, even coupled with the matters raised by Dr K, prevent her participation, particularly in the context that she is now represented.  I do not accept that the evidence sustains that it is established to a level as to prevent her proper participation in the trial. 

20. Further, it may be seen that the mother's description of the causes of her distress are the very matters which the trial is designed to resolve.  The mother speaks to her current fear for Y’s circumstances, being a fear exacerbated by what she says is a downturn in the father's mental health, coupled with his withholding of Y from her time with the mother.  The mother perceives risk in these circumstances.  It may be observed that these sorts of circumstances have been an ongoing theme throughout the many versions of interim hearings that have been dealt with in this matter. 

21. We now stand on the cusp of testing these matters by trial, being a testing of the very matters that require resolution to determine Y's well-being. 

22. However, what the mother seeks is that there be an interim deferral of the trial and reversal of Y's arrangements.  However, the matters raised by her require the attention of a trial, which is due to commence immediately.

23. The adjournment is opposed by the father and the Independent Children’s Lawyer.  The Independent Children’s Lawyer particularly points to the need to resolve matters at final hearing to ensure Y's well-being. 

24. In determining the adjournment application I am to apply the principles for conducting child-related proceedings as set out in s 69ZN of the Act. The first principle is that 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. Further delay of these proceedings and presumably further interim arguments about what Y's arrangements should be are deleterious to her well-being. Delay of the trial exposes her to further conflict between the parents, further angst by the parents and further delay of the matters that need to be resolved to establish what is in her best interests.

25. The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.  The Court has done so.  The mother's failure to file, and last moment adjournment applications, undermines these steps. 

26. The third principle is that the proceedings are to be conducted in a way that will safeguard:

    (a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

    (b) the parties to the proceedings against family violence. 

27. The safeguarding of the parties and Y in this matter, noting that each party alleges that the other has perpetrated family violence upon him or her, require prompt resolution which is available now in the final trial of the matter. 

28. The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child focused parenting by the parties.  I note that the fourth principle is conditioned by the phrase “as far as possible”.  It may be observed from the history of this matter that that is not a possibility. 

29. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form, as possible.  Of those matters is the matter of undue delay that rises highest.  Here, a further delay of the proceedings where time has been allocated for it, where there have been orderly directions made for the proper preparation of a trial means the further delay of the matter would be undue.

30. These matters together call for a refusal of the adjournment application. 

31. The mother asserts that she has not been given procedural fairness should the matter proceed today.  The mother has been given every opportunity to prepare and to participate in the trial.  It is true that an abundance of Legal Aid would see that opportunity available more fulsomely.  It is regrettable that Legal Aid is not abundantly available to persons appearing before this Court.  It cannot be ignored that there is a lack of abundance of Legal Aid, however, the circumstances here do not point to a denial of procedural fairness and do not point here to an injustice being perpetrated upon the mother. 

32. The mother has failed to lead evidence to establish that her late retaining of the services of the Legal Aid Office directly is a matter which warrants the adjournment of the trial.  The deferral of the trial works an unfairness to the father and an injustice to the father in the delay of the proper resolution of the arrangements for Y, and the delay in the resolution of their property proceedings.  It risks ongoing harm to Y in the delay, which works an injustice to her. 

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       7 June 2021