Cadriel & Gabbey (No 3)
[2022] FedCFamC1F 895
Federal Circuit and Family Court of Australia
(DIVISION 1)
Cadriel & Gabbey (No 3) [2022] FedCFamC1F 895
File number(s): ADC 4072 of 2019 Judgment of: BERMAN J Date of judgment: 1 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where part way through trial, the mother engaged a new solicitor – Where the mother’s new solicitor sent informal correspondence to the judge’s chambers foreshadowing her non-attendance and alleged ill health as the reason – Consideration of Buljubasic v Buljubasic (1999) FLC 92-865 – Consideration of Part 7 Division 12A of the Act – Orders. Legislation: Evidence Act (1995) (Cth) s 41
Family Law Act 1975 (Cth) part 7 div 12A, ss 69ZN, 101(2)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Buljubasic & Buljubasic (1999) FLC 92-865
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 1 November 2022 Place: Adelaide Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Southern Vales Legal Counsel for the Respondent: The Respondent mother appearing in person Solicitor for the Respondent: Heather Stokes & Associates Counsel for the Independent Children’s Lawyer: Ms Olsson Solicitor for the Independent Children’s Lawyer: Silkwoods ORDERS
ADC 4072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CADRIEL
Applicant
AND: MS GABBEY
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
1 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The proceedings are adjourned to 10.00am on 2 November 2022.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadriel & Gabbey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EXTEMPORE REASONS FOR JUDGMENT
Berman J
The part-heard proceedings concern the future parenting arrangements in respect of two children, X and Y.
Mr Cadriel is the applicant father and Ms Gabbey is the respondent mother. The father is represented by solicitors who have instructed Ms Ross of counsel to appear. The mother has instructed Heather Stokes and Associates and Ms Stokes from that firm appears as counsel. Ms Olsson appears as counsel for the Independent Children’s Lawyer.
The trial was adjourned on 7 October 2022, being day seven of the hearing. The reason for the adjournment was that the mother had instructed Ms Stokes in the expectation that she was to attend at 12 noon on 7 October 2022. It is not controversial that Ms Stokes did not attend. As was set out in reasons that I gave yesterday in support of the adjournment until today, two expert witnesses were available on 7 October 2022, the first being Ms B, who ultimately gave her evidence late in the afternoon, and the second being Ms P, who was available to attend if time permitted.
At 12.10 pm, Ms Stokes was contacted in circumstances where she had not appeared. The information that the Court was given was that Ms Stokes was not aware that she was expected to appear at 12 noon. Ultimately, the mother attended at 12.17 pm. There was some discussion in respect of Ms Stokes, who ultimately attended at 1.40 pm. The matter then proceeded with the evidence of Ms B.
The matter was adjourned thereafter until 31 October 2022. The Court was satisfied, from the submissions of Ms Stokes, that there would be sufficient time for Ms Stokes to acquaint herself with what had happened in the proceedings thus far. The Court does not know, nor was I informed, as to the extent to which the file, as held by Mr T (the mother’s previous solicitor), was made available to her and/or to Ms Stokes. It was also foreshadowed that there would be an Application to re-open the cross-examination of the father on the basis of the assertion that Mr T was incompetent or wilfully negligent in the manner in which he conducted the cross-examination and that he did not ask questions and/or put matters to the father that were consistent with his instructions.
The matter came on for hearing yesterday and again there was a further application by Ms Stokes, improperly filed, seeking a further adjournment to enable transcript, which had been ordered, to be supplied. As was considered by me yesterday, the issue of transcript had assumed a level of importance well beyond that which was required for the matter to proceed in an orderly fashion. It was always available to the mother to seek transcript. It is not for the Court to understand what arrangements a party must make in order that transcript be provided nor is it always necessary that transcript is required.
In any event, the transfer of instructions from Mr T to Ms Stokes is a matter entirely for the mother. It is not a matter for the Court. The Court cannot require a party to be represented nor can the Court dictate and determine who should represent a party or, more relevantly, how that should occur. If, in a transition from one solicitor to another, there is likely to be a delay or some other difficulty in the matter proceeding in an orderly fashion, again that is a matter to be resolved by the party who seeks different representation.
As matters have transpired, the transcript in respect of the two days of cross-examination of the father by Mr T is now available. I do not consider that the balance of the transcript, such as it is, adds anything of significance to the proceedings nor is it required for Ms Stokes to be able to represent the interests of the mother.
The issue of the application to recall the father for cross-examination was not part of the inadequately prepared application for an adjournment of the proceedings but rather, it has now materialised by way of a late filed Application in a Proceeding.
The application for an adjournment of the proceedings on the basis of the lack of transcript and the concern that Ms Stokes was ill-prepared was dismissed by me yesterday. The matter was then listed today. Whilst there are concerns again as to the manner in which the application in a proceeding which now seeks to re-open the cross-examination of the father was filed, it will be received.
The application however, cannot be argued because upon the matter being called on this morning in anticipation that the trial would proceed and the application to re-open be heard, Ms Stokes is not present. The best information that is available, at least directly from Ms Stokes, is via an email that was forwarded to the solicitors for the father, to the ICL, to the mother and to my chambers. I now have the document, the receipt of which had been indicated by Ms Ross, and it is in the following terms:-
To the Associate of Justice Berman, apologies but I have been very unwell overnight and am too unwell with apparent gastroenteritis symptoms to attend court today. Thank you, Heather Stokes.
Clearly Ms Stokes is not here. The question however that needs to be asked, is whether the email communication provides sufficient and appropriate explanation for why there is no attendance by the mother’s solicitor and counsel. The mother advised the Court that she had had the courtesy of a telephone call wherein she was advised that Ms Stokes was unwell. I accept the mother’s report of the content of the telephone call in that it did not disclose, with any detail or particularity, the nature of the ailment and the extent of the potential disability that was likely to be sustained, or asserted to be sustained, by Ms Stokes.
The matter was stood down and the mother had a further telephone conversation with Ms Stokes. It now appears that Ms Stokes asserts she had some form of gastroenteritis, that it is likely to be of short duration, that as a result of that short duration she does not consider it worthwhile going to the doctor for a diagnosis and prognosis but there is some reasonable expectation that Ms Stokes will be available tomorrow.
Ms Ross of counsel made an application that the matter should proceed whether that be in respect of the Application in a Proceeding or the matter generally. That application is opposed by the mother. As tempting as it may be in the circumstances in which this case has been run, with some reluctance, the application is refused.
There is a trend in this, and other matters, where the normal Court process is considered unnecessary and can be circumvented by email communication forwarded to the Registry, chambers or the parties. There needs to be some clarity to the manner in which practice and procedure can be subsumed by convenience.
It is often raised by judicial officers that communication directly with a judge’s chambers is both unwelcome and should be discouraged. If the communication is sent with some expectation that a judicial officer will read the communication, unless it falls into the category of communication that is invited and expected, then that assumption is wrong.
The Full Court decision of Buljubasic & Buljubasic (1999) FLC 92-865 (“Buljubasic”) is still of current relevance. The facts are relatively straight forward. The matter was listed for a trial. The husband, who appeared in person with an interpreter, sought an adjournment to which the wife consented. On the adjourned date the husband then sought to vacate the hearing on the basis that he wanted to argue that the wife had not disclosed her true financial position and that he did not have the papers necessary to prepare his case following a cost dispute with his former solicitors.
On the adjourned date, the husband failed to appear and the trial judge stood the matter down to enable the husband to be contacted and, out of courtesy and an abundance of caution, inform him that the matter was proceeding.
The following day, after judgment had been dictated but before delivery, the trial judge received a facsimile transmission from the husband, which had been received in the registry the previous day, acknowledging that the matter had been set down but advising, without explanation, that because the husband had been unable to get some documents translated he would be unable to appear.
In dismissing the appeal and confirming the judgment that had been made by the trial judge in the absence of the husband, the Full Court found that the trial judge had made no error of discretion in proceeding to hear the matter in the husband's absence. Specifically, the husband was responsible for his conduct of the proceedings and he was aware of the hearing date and failed to appear without proper explanation. Further, in Buljubasic (supra), their Honours said at 86,216:-
It is, ordinarily, improper for litigants to seek to communicate with a trial Judge by sending a facsimile or other communication to the Court or Registrar. A litigant seeking an adjournment or extension of time in respect of a matter listed for hearing must either appear in Court on the listed date or send a representative to make a proper application for relief.
The entertainment of the husband’s application for an adjournment, communicated by facsimile transmission, was within the trial Judge’s wide discretion. Nothing in the husband’s transmission advanced any proper basis for the Court to adjourn the proceedings which had been set down for hearing. There was no evidence to suggest that the ultimate property settlement resulted in any injustice to the husband.
My discretion is wide in terms of how I deal with matters. I am also able to receive communication if I think that it is necessary and important to do so. Much will depend often on the quality of the communication and, in this case, correspondence which suggests that counsel cannot appear because they are unwell, and too unwell with apparent gastroenteritis symptoms, is to be considered, without more, as wholly inadequate.
This communication occurs in the middle of what was a 10 day trial. It should be immediately apparent to all involved that this matter is complex, problematic and a parenting case which requires the litigation to be brought to an end at the earliest opportunity rather than allow it to linger on.
Where there are experienced solicitors and counsel involved, it would be well-understood by them, as officers of the Court, that if counsel is not able to attend as a result of ill health, unless there is the ability to reach agreement with other counsel that does not seek to challenge the health circumstances that prevents counsel from attending, then significantly more is required. The minimum would be a medical report outlining the nature of the diagnosis and the condition allegedly sustained and suffered and the prognosis.
Any application for an adjournment requires two aspects to be determined. The first, is why there should be an adjournment and the second, is the duration of that adjournment. It is demonstrable that there was no communication between Ms Stokes and either Ms Ross or Ms Olsson. Why that did not occur, why there was not at least the modicum of professional courtesy, is a matter that I have difficulty in understanding.
The consequence of the conduct by Ms Stokes, required the mother to attend and attempt to assist the Court in what had happened to her own counsel. I have already indicated that I propose to adjourn the matter to 10.00 am on 2 November 2022. What is more important however, is for there to be no misunderstanding as to what will happen on that day. Given that transcript is now available, I can see no reason why the order of business tomorrow morning will be other than the consideration of an Application in a Proceeding seeking that Ms Stokes be permitted to re-open the cross-examination of the father. There is a long way to go before that application is resolved.
One curious aspect of it, but again a matter entirely for Ms Stokes when she appears, is what has happened to the bundle of documents that apparently was the principal contention as to why the cross-examination of Mr Cadriel was inadequate. Mr T indicated he had the documents or he was made aware of them. The issue of these documents has been raised and whilst it may be that there are other reasons why the cross-examination should be re-opened, at the very least the foreshadowed documents loomed large and was one of the significant issues as to why the Court was prepared to adjourn the proceedings.
There should be a high expectation that the matter will proceed tomorrow morning. It is likely that that will be irrespective of the ability of Ms Stokes to attend or not. The Court has concerns again as to the manner in which Ms Stokes has conducted herself.
The other matter of which I remind counsel, solicitors and the parties are the matters which I raised at the commencement of these proceedings, namely the principles for conducting child‑related proceedings pursuant to Part 7 Division 12A of the Family Law Act 1975 (Cth) (“the Act”). It may be that the principles have to be reinforced by me so that all understand how the matter is to proceed and where my clear obligations and duties lie. I propose to do so for the avoidance of any misunderstanding as to where I consider the focus of my judicial obligations rest.
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. As I have indicated in this matter time and time again, unrelenting and unending litigation is never likely to be seen as in the best interests of a child or children. Tempered as that may be by the proper administration of justice, nonetheless under the Act the interests of a child is the paramount consideration. The second principle, is that the Court is to actively direct, control and manage the conduct of the proceedings. I would have thought that was a matter that needs little further discussion.
The third principle, is that the proceedings are to be conducted in a way that will safeguard the child concerned, from being subjected to or exposed to abuse, neglect or family violence and the parties to the proceedings against family violence. Again, I would have thought that was an uncontroversial statement. The fourth principle, is that the proceedings are to be conducted in a way that will promote cooperative and child-focused parenting by the parties. I suspect the fourth principle is unlikely to come to the fore in this matter. The fifth principle, is important in that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.
Yesterday I went through, at some length, the importance of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. It is relevant to the application of the respondent mother that the proceedings be adjourned until tomorrow morning. I repeat my concern that whilst five days as set aside was sufficient, in my view, to complete certainly the evidence of the mother and of Ms P together with final submissions, I am not so confident that in the three days that are now left that can be achieved.
A concern I have about that obviously has resonance with the principles of s 69ZN of the Act in that any adjournment of the proceedings are likely to be lengthy given that we are fast approaching the Christmas break and the unrelenting trial commitments that I have between now and possibly even the middle of 2023.
That is likely to raise a consideration by all parties as to what should happen in the interim, in respect of a length adjournment interim period. I have been doing my best to have the evidence and submissions completed in a timely fashion. Again, whilst I must weigh up the proper administration of justice and have some regard to the manner in which parties would wish to run their case, my obligations are significantly broader than that.
Yesterday I referred to s 101(2) of the Act and s 41 of the Evidence Act (1995) (Cth) in relation to cross-examination. It may be that those sections will need to be revisited in respect of any application to re-open the cross-examination of the father.
I want there to be no misunderstanding that in adjourning this matter until tomorrow morning there is to be some expectation that the matter potentially could be further adjourned. That is unlikely to happen. This matter will proceed tomorrow in circumstances where I consider there is no procedural unfairness and that ample opportunity has been given for the mother’s case to be prepared.
But I want to make it clear that the reasonable expectation is that the matter will proceed tomorrow with the hearing of the application to re-open the cross-examination, the determination of that application and the further evidence that will then flow. Accordingly, the matter is to be adjourned until 10 am on 2 November 2022.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 16 November 2022
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