Caldwell and Caldwell
[2007] FMCAfam 974
•1 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALDWELL & CALDWELL | [2007] FMCAfam 974 |
| FAMILY LAW – Adjournment of trial – case turns on its own facts. |
| Family Law Act 1975 (Cth) |
| Myers (1969) WAR 19 Reed & Reed; Draper (Intervener) (1995) FLC 92-649 |
| Applicant: | J A CALDWELL |
| Respondent: | S P CALDWELL |
| File number: | MLC 8926 of 2007 |
| Judgment of: | Walters FM |
| Hearing date: | 1 November 2007 |
| Date of last submission: | 1 November 2007 |
| Delivered at: | Shepparton |
| Delivered on: | 1 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr K F Nicholson |
| Solicitor for the Applicant: | Faram Ritchie Davies |
| Counsel for the Respondent: | Ms N Inglis |
| Solicitor for the Respondent: | Morrison and Sawers |
| Counsel for the Independent Children's Lawyer: | Mr P H Testart |
| Solicitor for the Independent Children's Lawyer: | Suzanna Sheed and Associates |
ORDERS
IT IS ORDERED THAT:
Pursuant to section 13C(1)(b) of the Family Law Act, the parties attend family dispute resolution with a family dispute resolution practitioner to help them resolve their disputes with each other – such family dispute resolution to occur at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
The parties attend a Conciliation Conference at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia .
Within 14 days of being notified of the nominated organisation, the solicitors for the parties do send to that organisation copies of the following documents:
(a)all relevant applications and responses filed in the within proceedings;
(b)all relevant affidavits and financial statements filed in the within proceedings; and
(c)any intervention or restraining orders currently in force.
Each party do exchange market appraisals or valuations of any asset in dispute no later than fourteen days before the conciliation conference.
Each party send any market appraisal or valuation of any asset in dispute to the nominated organisation no later than seven days prior to the date fixed for the conciliation conference.
Paragraphs 4 & 5 on page 5 of the Orders made on 10 August 2007 be discharged.
Until further order, the children JRC born
1995, SJC born 1996 and JWC born 1999 do live with the wife.
Until further order, the husband do spend time with the said children as agreed between the parties from time to time in writing.
The husband do file and serve a Response, financial statement and supporting affidavit or affidavits by not later than 4.00 p.m. on
30 November 2007.
In the event of the husband failing or refusing to strictly comply with the Order contained in the preceding paragraph, the wife have liberty to proceed to seek final orders on 10 December 2007 on an undefended basis.
The wife do file and serve a financial statement by 4.00 p.m. on
9 November 2007.
The matter be adjourned to:
(a)10 December 2007 at 9.30 a.m. for mention only; and
(b)In the Shepparton Circuit with priority, commencing 4 February 2008 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The wife do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the commencement of the said sittings.
The husband do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the commencement of the said sittings.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the commencement of the said sittings.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the commencement of the trial.
The costs of the wife and the independent children’s lawyer be reserved.
AND THE COURT NOTES THAT:
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SHEPPARTON |
MLC 8926 of 2007
| J A CALDWELL |
Applicant
And
| S P CALDWELL |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Before the court is the husband's application to adjourn the trial date to the next circuit, if I correctly understand the nature of the application. In essence, that application is supported by the independent children's lawyer, although it is opposed by the wife – who seeks that the proceedings be dealt with today (and, if need be, on an undefended basis).
The proceedings were commenced on 9 August 2007, by an application filed on behalf of the wife. The application was brought before me sitting in this circuit on 10 August, at which time certain consent orders were made. Before I deal with those orders, it needs to be said that the wife’s application seeks orders in relation to the three children of the marriage, and orders in relation to property settlement.
The orders sought in relation to property settlement are general, and it is not possible to identify with particularity the precise nature of the relief sought by the wife. Paragraph 4 of her application simply reads, under the heading “Property”, that the assets of the marriage be divided 80 per cent to the wife and 20 per cent to the husband after all assets and liabilities are identified. Quite obviously, that prayer for relief could mean almost anything.
The orders in relation to the children are clearer, but even there paragraph 3 seeks that the children are to spend time with the husband “as and when agreed by the parties”. Nevertheless, the parenting orders sought are sufficiently clear to have enabled a trial to proceed today if the matter had otherwise been adequately prepared. Insofar as the property orders are concerned, I note that the wife did not file
a financial statement at the time of filing her application; that is, of course, in breach of the Rules. I note, as well, that the wife has not filed a financial statement in support of her application, or pursuant to the orders that were made on 10 August 2007, prior to 10 am today.
I am advised by Mr Nicholson on behalf of the wife that a financial statement is now available, and an attempt was made to file it today.
I declined to accept it, however, because of its lateness, and because of the total absence of any explanation as to why the wife was unable to file the document well before today. I might add, in relation to that matter, that the husband has not filed a response, and has filed no affidavit material in relation to the wife's application.
The orders made on 10 August 2007 were made by consent. They involved the appointment of an independent children's lawyer,
a requirement that the parties attend family dispute resolution counselling and a conciliation conference, an order for the preparation of a family report, certain other orders which are less relevant to today's application, and orders adjourning the proceedings to this circuit. The matter was listed for hearing in this circuit with an estimate hearing time of two days. Paragraph 15 requires the wife to file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the commencement of the sittings. The wife has filed nothing beyond her initial application and supporting affidavit.
Paragraph 16 provides that the husband must file and serve all further affidavits and other material that he relies upon by not later than
14 days prior to the commencement of the sittings. As I recorded earlier, the husband has filed nothing. Paragraph 17 requires the independent children's lawyer to file and serve all further affidavits and other material to be relied upon by not later than seven days prior to the commencement of the sittings. The independent children's lawyer has filed nothing beyond a notice of address for service, although I suspect that the independent children's lawyer is minded to rely upon the family report which was prepared in this matter and is dated
17 October 2007. I shall deal with the circumstances surrounding the preparation of that report in a moment. Paragraph 18 of the orders and directions that were made on 10 August provides that all parties must file and serve an outline of case document in an appropriate form by not later than 72 hours prior to the commencement of the sittings. None of the parties saw fit to comply with that order.
The proceedings came before me today on the basis that Ms Inglis for the husband is unable to obtain instructions from her client. She reviewed some of the history of the matter – which included the husband vacating the former matrimonial home pursuant to consent orders made on 10 August, and later moving to C to live with his family. Ms Inglis confirmed that the husband has filed nothing (although documents were prepared for him in draft prior to the hearing on 10 August) and that he did not attend for the preparation of the family report. That fact is apparent from the report itself.
Ms Inglis confirmed that the husband left S on 31 August 2007. She has otherwise been unable to obtain the husband's instructions, and when an inquiry was made of her by the court, she expressed the view that he does not have capacity to provide instructions at the present time. He is apparently suffering from depression. I say "apparently" because Ms Inglis has obtained an extremely brief medical certificate stating that the husband is unfit for work for an unidentified period from a date in September due to depression.
I understand that that certificate was provided to the independent children's lawyer on or about 19 October 2007, very shortly before the commencement of this circuit, and that the independent children's lawyer sought (appropriately) a more full report dealing with the husband's mental state. That report has not been forthcoming.
Ms Inglis has made some efforts to obtain instructions from her client. I am told that she wrote to her client on 18 October 2007 and spoke with him on 19 September 2007. It is certainly arguable that those efforts were inadequate, given the directions that the court had made for this matter to proceed to trial in this circuit, and given that those directions were made by consent. I find it hard to accept that the urgency of the matter was not impressed upon the husband, or was not understood by his solicitors. It appears that the solicitors for the husband, having formed the view that he did not have the capacity to provide instructions and that the matter could not be prepared for trial, made some contact with the other parties in an effort to seek their consent to the matter being adjourned. Clearly, the other parties did not consent to the matter being adjourned. Even if the independent children's lawyer can be understood to have indicated that an adjournment was not opposed, it is perfectly clear that the wife’s solicitors did not indicate that they would agree to an adjournment.
In those circumstances, the obligation was upon the husband’s solicitors to make an urgent application to vacate the trial, setting out the reasons why the adjournment is warranted. The husband lives with members of his family, and I have been provided with no explanation as to why affidavit material relating to the husband's apparent mental state could not have been obtained from them, or indeed from some other witnesses who I may not know about. The bottom line is that very little has been done – by or on the part of the husband – to enable the matter to be prepared adequately for trial.
On the other hand, the fact of the matter is that the wife has not complied with the court’s orders and directions either. Significantly, she has not filed updating material. In my view, such updating material is essential when regard is had to the events of 31 August or thereabouts. Further, it was incumbent upon the wife to file a financial statement in a timely fashion. She has not done that, and even if I had been minded to allow the proceedings to continue before me today, there is a grave possibility that the husband would have been taken by ambush in relation to the general financial evidence to be presented by the wife.
Mr Nicholson argues that the wife has dealt with financial matters in her affidavit. She has indeed spoken of financial matters in a few paragraphs, but the fact of the matter is that the parties' respective contributions in all their guises have not been properly dealt with. Some aspects of the financial position of the parties have been touched upon but, for example, there is no financial history of the marriage in any relevant sense. Similarly, section 75(2) factors are not dealt with in the affidavit material. All in all, the wife's initial affidavit reflects exactly what it was intended to be, namely an affidavit in support of an urgent application seeking exclusive occupation of the former matrimonial home in the circumstances set out in the affidavit. Those circumstances were, of course, that the parties had separated in June 2007 after a lengthy period of unhappiness and friction, that the wife had initially moved out of the home to reside with her parents, and that the parties were sharing the care of the children. According to the wife, the husband had not been adequately maintaining the home and it had become untidy and neglected, thereby affecting its value. I was not called upon to determine the wife's application because, as I have already indicated, the matter was resolved by consent.
The family report was prepared by Matthew Saunders and is dated
17 October 2007. It follows interviews which took place on Thursday 27 September 2007. The report briefly records the history of the parties' relationship, and the fact that the husband removed himself from the home after the orders of 10 August were made. It also records that the husband returned to the home (in circumstances described in the report) in the early hours of the morning on 31 August. Following that very unpleasant incident (which was clearly frightening from the wife's point of view), an intervention order was obtained. It seems that the husband left for C immediately after that event.
The report reveals that the children have had a very close relationship with their father in the past. Of course, they also have a close and loving relationship with their mother. Summarising the report in a few words, it seems clear that all the children wish to maintain
a meaningful relationship with their father, and that they would like to spend time with him. The report reveals that the husband did not appear to accept that the marriage was over, that his behaviour had become erratic, and that he was not coping with the events flowing from the breakdown of the marriage (and, in particular, the events subsequent to the orders of 10 August 2007).
The children are concerned, of course, by the events which have occurred since their parents' marriage broke down, although I note that the oldest child, J, said that the fact that her parents had separated had stopped their arguing and she was glad of that. Still, it is clear from the report that the children prefer to have an ongoing relationship with their father, and that they are feeling uncertain about the future, both in that regard and generally.
The report writer summarises the position in paragraphs 24 through to 29 of the report and I incorporate that summary in these short reasons:
The current conclusions and recommendations are limited as
a result of Mr Caldwell not participating in the current assessment and the consequential inability to interview him as well as observe all three children with him.
Mrs Caldwell is seeking to have J, S and J under her full time care with all children spending time with their father as agreed between both parents. She contended that their three children were equally close to both of them and wanted to arrange a care plan for her children that involved substantial contact for all their children with their father. She expressed frustration at that not being able to happen until Mr Caldwell decided his future plans including were he was going to live. She believed it was in her children’s best interests to have a structure around them so they would know when they would see their father next, how long for and the frequency of time under his care. Mrs Caldwell stated that all their children were well established and enjoying their school and social lives in S and believed that this stability was necessary in the context of major family changes. She contended that Mr Caldwell’s behaviour across their separation indicated that he was having considerable problem in accepting the separation and adjusting to it, and she was not sure of his current emotional state other than being told he was too depressed to participate in the current family assessment.
All three children presented as socially appropriate with an ability to talk about both difficult and enjoyable experiences. All indicated having a secure relationship with both parents and this was congruent to their warm, familiar and relaxed style of interacting with their mother observed when with her across the observational play session. While each expressed sadness about the circumstances around not seeing their father, they also appreciated being able to talk about this to their mother and acknowledged her facilitating them to keep in regular phone contact with their father. Both boys gave slightly different accounts of when they would next see their father and how long for. These were again different from their mother’s reported understanding of Mr Caldwell’s likely contact with the children. This therefore indicates a level of current confusion and uncertainty in the family and definitely for the children as to when they would be having contact with their father.
Mrs Caldwell related in a warm unintrusive and relaxed manner with her children who were observed to reciprocate their mother’s interest in them. She impressed as having a good understanding of her children, including the effect of past parental conflict on them as well as being aware of the impact of the current family changes and how each was adjusting to these. She was honest in her account of enlisting her family to support and assist her and her children across the period of the separation from her husband.
Whilst all children were definite in wanting to spend time with their father and their mother, Mr Caldwell’s current circumstances including his future living plans are unknown. An email written from his solicitor detailed that Mr Caldwell was suffering from depression and was advised that he should not make decisions at this time of depleted coping resources. The email also stated that a medical report confirming these details would be made available. Due to the father not being available to participate in the assessment I am unable to comment on the impact of his current emotional difficulties on his ability to parent his children. Nor can I comment on the quality of his relationships with his children other than from the children and Mrs Caldwell’s account which collectively suggest that he had managed to have a close and involved relationship with all of his children, despite reports from Mrs Caldwell of her ex-husband being mildly unreliable in making himself consistently available.
It is important that Mr Caldwell’s emotionally based health issues do not impede the ability of J, S and J to be able to feel stable and oriented in their family care arrangements and to feel in control and able to know where they will be living and whose care they will be under well in advance (for instance during holiday periods) when time under their father’s care in C may well be possible, provided Mr Caldwell’s health problems and ability to cope was at an appropriate level to enable him to temporarily care for his children.
The report writer’s recommendation appear in paragraph 30 of the report. It is as follows:
At this juncture however, it may seem appropriate for the Court to indicate a view regarding the children’s current care with their mother, (which is assessed as stable and nurturing) and any requirement for a further assessment when Mr Caldwell’s health and availability makes this possible. No further recommendations can currently be made due to the limited
score –
I think it must be “scope” –
of this assessment.
The assessment was necessarily limited because the husband did not take part in the process.
As I said at the outset, today is the trial date. I note, though, that the matter was only listed for trial in August of this year, some two and
a half months ago. This is the first trial date and accordingly there have been no previous adjournments relating of the trial.
The principles associated with adjournment applications are discussed by the Full Court of the Family Court in the decision of Reed & Reed; Draper (Intervener) (1995) FLC 92-649. In Reed & Draper, the Full Court speaks of two competing principles that the court must take into account in determining whether to accede to an application for an adjournment of a trial. The two principles are described as the “court resources principle” and the “injustice principle”.
I shall deal firstly with the principle described as the injustice principle. All jurisdictions in this country have their favourite cases, as it were, stating the meaning and effect of the injustice principle. I come from Western Australia, and in that State the most frequently cited case dealing with the injustice principle is Myers (1969) WAR 19. It is
a decision of Jackson J, who later became the Chief Justice of Western Australia. At page 21, his Honour said:
To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party.
His Honour went on to say:
An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted.
So the injustice principle requires a balancing of the potential injustice to each of the parties should the adjournment be granted or should it be refused. Short of the wife's desire to have these proceedings brought to a speedy completion, there is no identifiable injustice to the wife if an adjournment were to be granted. The wife is in occupation of the former matrimonial home. The property is to be sold pursuant to orders made already, and if procedural orders are required to achieve that purpose then the parties have the right to apply for them and the court will deal with such an application if it is made. The children are in the wife’s care and the court make interim orders which will protect their best interests to the extent that that is possible in the circumstances of this particular case. Any possible injustice to the wife can – subject to the size of the asset pool and the financial position of the husband – be cured by an order for costs.
On the other hand, the potential injustice to the husband of the proceedings going ahead today is significant. His case is not before the court in any form. It may well be that he has an arguable case in relation to property settlement, and that any orders that the court would make without having heard him will seriously disadvantage him now and in the future. The same can be said, of course, in relation to parenting orders and the possibility that they may adversely affect his relationship with the children. If the husband is genuinely suffering from depression, then that is not his fault; proper evidence in relation to the subject should be presented to the court so that it can be taken into account in relation to children's issues and, if relevant, in relation to property settlement as well.
Of most significance in relation to the question of injustice, however, is the position of the independent children's lawyer. Leaving aside the respective positions of the parties, there is the possibility of a serious injustice to the children if the court were to proceed to deal with the wife’s application for parenting orders at the present time. I note that the report writer himself suggests (in paragraph 30) that interim arrangements only should be made to enable the matter to be progressed at a later stage. On the basis of the injustice principle, therefore, I would be minded to grant the adjournment.
The other principle is expressed to be the court resources principle.
It is discussed in Reed & Draper and the relevant cases are cited in that judgment. I do not propose to review those decisions. Suffice it to say that the court resources principle recognises that the workloads upon modern courts are immense, and that it is essential that practitioners and parties “get their tackle in order”, so that cases can proceed when they are listed to proceed. There is a public interest in ensuring that trials proceed on the dates that they are listed. Parties usually wait
a long time for trial dates (although that is not always the case in a circuit such as this one). When parties are given a trial date they are given priority over those waiting behind them in the list. Sometimes other cases are arguably more urgent than the case that is before the court for trial. In Reed & Draper the Full Court said (at page 82,572):
In the Family Court (and, of course, in this court as well), the pace of litigation is ordered by the court, not by the legal representatives of the parties and not by the parties themselves. By a series of case directions and conciliation and pre-trial conferences the cases proceed along the litigation pathway. There can be no doubt that they must proceed along that pathway at the pace that the court directs and not at whatever leisurely pace they think might be suitable for their own purposes.
Had the wife complied with the orders and directions that I had made,
I might have been more inclined to insist that the trial proceed – in relation to property settlement, at least – but she has not. To use the expression from Equity, she does not come to the court with clean hands in that regard. There can be no doubt that the husband's position is far worse. He has totally ignored the procedural orders made by the court and there is no adequate explanation for why his solicitors did not make an application at a much earlier stage to vacate the trial. In doing so they could have presented all relevant evidence to the court, but they did not do so.
Nevertheless, in the circumstances of this case the potential injustice to the husband and, in particular, to the children, is sufficiently great to outweigh what might otherwise be the governing principle, namely the court resources principle. For those reasons, I will grant the adjournment, but I will make orders that will cover the position from now until the next circuit. Relevantly, it seems to me that there is merit in Mr Nicholson's suggestion that the orders relating to the husband spending time with the children on a shared care basis currently have no practical application – particularly given the current state of the husband's mental health as it has been described to me.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Rachel Peattie
Date: 15 January 2008
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