Brar and Kambo & Anor

[2019] FamCA 769

FAMILY COURT OF AUSTRALIA

BRAR & KAMBO AND ANOR [2019] FamCA 769

FAMILY LAW – PRACTICE & PROCEDURE – Ex tempore reasons for adjournment of parenting proceedings – Where the respondents were not represented, did not speak English and unable to present their case - Order for the respondents to pay costs of the applicant.

FAMILY LAW – PARENTING – Where the respondents continue to seek medical intervention for the child - Respondents restrained by injunction from taking the child to any medical practitioner other than in an emergency.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Mr Brar

RESPONDENT: Ms Kambo

SECOND RESPONDENT: Mr Shah

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1685 of 2017

DATE DELIVERED: 15 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 15 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Apelbaum

SOLICITOR FOR THE APPLICANT: Davityan Lawyers

FOR THE RESPONDENT: In person

FOR THE SECOND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lawrence

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That the respondents pay to the solicitors for the father the sum of $3,500 such amount to be paid within 3 months of the date of these Orders.

2. That the respondents are restrained by injunction from taking the child X born … 2011 to any medical practitioner or health provider except Ms B.

3. That in the case of an emergency, the respondents are permitted to call an ambulance or take X to the emergency department of a hospital, in which case they must notify the father immediately and the Independent Children’s Lawyer within 24 hours in writing.

4. That if X needs to see any medical practitioner or health provider other than Ms B or in the case of an emergency, while she is in the care of the respondents, the respondents shall return X to her father immediately.

5. That Order 14 made on 7 May 2019 is discharged.

6. That the matter is adjourned part heard for 4 days commencing on 20  April  2020 at 10am before the Honourable Justice Rees.

7. That the listing on 16 October 2019 is vacated.

IT IS DIRECTED

1. That not later than 4pm on 23 March 2020 each party file one affidavit setting out any material relevant to the issue of how much time X spends with her grandmother and uncle and dealing only with events which have occurred after today’s date.

2. That within 7 days of today’s date the respondents provide to the solicitors for the father and the Independent Children’s Lawyer copies of any video recordings which they intend to tender in the next hearing of the proceedings.

IT IS NOTED

1. That these Orders have been interpreted to each of the respondents by an interpreter today in Court as they were made.

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 Brar & Kambo and Anor 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: SYC 1685 of 2017

Mr Brar

Applicant

And

Ms Kambo

Respondent

And

Mr Shah
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, there is an application for an adjournment by the respondents, who are the maternal grandmother and uncle of the child X who was born in 2011. The applicant is X’s father with whom she lives. X’s mother died in 2017.

2. When the matter was adjourned part heard to these dates, the respondents were represented by solicitors and counsel.  Those solicitors for the respondents filed a Notice of Ceasing to Act in August 2019.

3. The matter had been listed for hearing for two days, on the basis that the primary issues to be determined were whether or not the maternal family was able to support the child’s relationship with her father, and whether the arrangements, which were made by consent, for the child to spend time with the maternal family, were appropriate or whether they should be changed.

4. The Court has been provided with a report by X’s psychologist, Ms B, who expressed her main concern to be the impact upon X of the apparent lack of ability of the grandmother and the uncle to accept the current orders of the Court and to follow them.  However, the Independent Children’s Lawyer does not ask the Court, today, to reduce the time that X spends with her grandmother and uncle. 

5. However, that may be the application when the matter, again, comes before the Court in April 2020, when the matter will be listed for hearing before me for four days, commencing on 20 April 2020.

6. I now turn to the application for costs.  The general scheme of the Family Law Act 1975 (Cth) is that each party should pay their own costs, unless there are circumstances which justify a departure from that position. If there is to be a departure, the provisions of section 117 (2A) apply, and I propose to deal with those provisions as they apply to these parties.

7. The financial circumstances of the father and the maternal family are not dissimilar.  The father works part time as a carer, the maternal uncle works part  time as a cleaner.  Neither of them, I accept, has any substantial assets or savings.  The maternal grandmother does not work.

8. None of the parties are in receipt of a grant of Legal Aid. 

9. It is the conduct of the parties, however, particularly the maternal grandmother and uncle which is relevant here.  Their solicitors filed a Notice of Ceasing to Act in August 2019.  The father’s solicitors attempted to find out whether or not they were seeking other legal representation in a letter dated 20  August  2019.  They received no answer to that letter. 

10. The first notice that the father and the Independent Children’s Lawyer had of an application for an adjournment was at 10 minutes past 10 o’clock this morning, when the application was made.  The father has been required to prepare the matter for a hearing today and tomorrow.  He has briefed counsel, as it was appropriate for him to do.  The father’s counsel and solicitors have been required to do the work necessary to get the matter ready for hearing. 

11. Had notice been given to the father’s lawyers in a timely way, it may be that they would have consented to the adjournment and not spent the money required to have a barrister here today.  However, no such notice was given.  In those circumstances, it is appropriate that the respondents should pay the costs of the adjournment, which is granted on their application.

12. I am not in a position to make an assessment of the father’s costs at scale, and I propose to order that of the actual costs which have been charged to the father, of $7,460, the respondents should pay $3,500 by way of costs.

13. The second matter which required to be determined arose from reading the respective affidavits of the parties.

14. It became apparent that, contrary to orders which were made by consent on the last occasion, the respondents had attempted to take X to a doctor and eventually taken her to the emergency department of a hospital.

15. On 7 May 2019, I made an order by consent (Order 14), which provided that, except in the case of an emergency, all parties were restrained from taking the child to a general practitioner other than Dr C.  Or, if Dr C were not available, to the Suburb E Medical Centre or to a person directed by Dr C.

16. I raised the issue of my own motion.

17. After reviewing the material produced on subpoena, including the material produced by the hospital, the Independent Children’s Lawyer applied for an order which would restrain the respondents from taking X to medical services, other than Dr C in the case of an emergency.

18. On Friday 8 June 2019, the respondent uncle took X to the D Hospital having, it would appear, made no proper attempt to make arrangements to take her to Dr C.  The attendance at the D Hospital was non-urgent, and appears to have related to the child being constipated.

19. The order which is proposed by the Independent Children’s Lawyer would require the respondents to return X to her father, in the event that she requires non-urgent medical attention, but permits the respondents to call an ambulance in the event that X requires urgent medical attention.  The father consents to the making of that order, which is opposed by the respondents.

20. In all of the circumstances, I am of the view that the respondents are unlikely to comply with the order which I made on 7 May 2019 and I therefore propose to make orders in accordance with the Independent Children’s Lawyer’s application.

21. Orders will be made in the form sought by the Independent Children’s Lawyer.

22. I note that these reasons, which were delivered orally, and the orders, have been interpreted to each of the respondents by an interpreter today, in Court, as they were made.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15  October  2019.

Associate: 

Date:  23 October 2019