CAPPETTTO and Cappetto (No 2)

[2011] FamCA 241

FAMILY COURT OF AUSTRALIA

CAPPETTTO & CAPPETTO (NO 2) [2011] FamCA 241

FAMILY LAW - CHILDREN - application for adjournment of hearing dates

Family Law Act 1975 (Cth)

APPLICANT: Mr Cappetto

RESPONDENT: Ms Cappetto

INDEPENDENT CHILDREN’S LAWYER: Brian Samuels

FILE NUMBER: SYC 7342 of 2008

DATE DELIVERED: 28 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Singh

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuels & Associates

Orders

1. The mother’s oral applications to vacate the hearing date be dismissed.

2. Leave granted to the Independent Children's Lawyer and the parties to inspect any documents produced under subpoena from Medical Centre 1.

3. Leave granted to the Independent Children's Lawyer to file for the final hearing an affidavit annexing all correspondence that he believes is relevant for me to have before me at the final hearing.

4. The time for the mother to file and serve affidavits be extended to 3pm Monday 4 April 2011.

5. The time for the father to file and serve affidavits be extended to 4pm Friday 1 April 2011. 

6. This matter be adjourned to 4.15pm on 4 April 2011 for mention by telephone.

IT IS NOTED that publication of this judgment under the pseudonym Cappetto & Cappetto (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7342 of 2008

Mr Cappetto

Applicant

And

Ms Cappetto

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter was listed before me today following an ex parte order that I made on Tuesday, 22 March, 2011, the effect of which was for the children to go from their mother’s care to their father’s care and that order was made without the involvement of the mother in those proceedings for reasons that are set out in the transcript of what happened on that day, a copy of which the mother has since received and I am told has read.

2. Today, however, the mother through her barrister, Mr Singh, does not press for the immediate return of the children but rather seeks an adjournment of an application for the return of the children to 7 April.  That is the date when the final part of the hearing about final parenting orders is scheduled to commence.  The mother seeks a vacation of those hearing dates that have been allocated for the final stage of the hearing to take place.

3. In support of the application for vacation of final hearing dates, the mother provides an affidavit which was sworn on 21 March, 2011. That affidavit and the submissions of Mr Singh have referred me to section 57 of the Legal Aid Commission Act 1979 (NSW). That section provides:

   Where it appears to a court or tribunal, on any information before it:

   (a) that a party to any proceedings before the court or tribunal:

   (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that appeal has not been determined, or,

   (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

   (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and,

   (c) that there are no special circumstances that prevent it from doing so,

   the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

4. I am told by the mother in her affidavit that, in her view, she was misguided by a former solicitor who charged her a sum of money.  It appears that that all happened at the time of the property settlement and, so far as I know, that was a significant time ago. 

5. The affidavit says she has applied for legal aid.  It did not say when but I am told by Mr Singh from the bar table today it was last month.  The mother, through Mr Singh, indicates that she was refused legal aid on the grounds of merit and an appeal was lodged on 10 March to the body responsible for considering appeals from refusals of grants of legal aid.  According to the mother’s instructions to Mr Singh, the appeal was not originally received by the Legal Aid Commission and was relodged on 21 March.  I am told it is unlikely that it will be dealt with until mid-May.  No precise date could be given.

6. The mother acknowledges in her affidavit that there is no guarantee that she will get legal aid, that is, there is no guarantee that her appeal will be successful although she expresses confidence.  She indicates also that part of her motivation for seeking this adjournment is to give herself more time to prepare her case. 

7. At the moment the children have been placed in their father’s care.  I have been provided a copy of a report by Dr L that details his opinion as to the current medical condition of both the children.  At first blush, and I have not fully heard any oral evidence that he would want to give, the children’s health does not seem as dire as it has been presented from time to time by the mother.

8. The independent children’s lawyer has indicated, however, from the bar table, that B has not yet been successfully toilet trained and I am told that that would create some impediment for him immediately commencing school. 

9. Both the father and the Independent Children's Lawyer oppose the vacation of the hearing date.  Between now and the hearing date, the children will remain with the father pursuant to the current orders which the mother does not seek to interfere with today.   

10. I do not, today, have any application before me and I will not until 7 April for any return of the children to the mother, it would be my view, considering everything I know about this matter, that it really does need to move to a final hearing.  It is not as if this comes as some surprise to the mother.  It has been coming for some considerable time.  Previous applications for adjournment have been refused.  This is not the first time the mother has said she wanted the hearing delayed in order to obtain the assistance of a lawyer.  I find there are special circumstances arising from the history of the litigation in this case and the situation the children find themselves in that prevent the court from adjourning the proceedings. 

11. For the sake of the children, the matter should proceed on Thursday week.  I might just note one word of caution there, there is another case in my list earlier in the week that might just impinge upon it starting at 10 o’clock on Thursday but I will be leaving it in the list on Thursday.  It will certainly start on Friday at the very worst but I believe it will be starting on Thursday.  If there is some problem with it starting on Thursday I will let everybody know. 

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 28 March, 2011.

Associate:   

Date:  28 March 2011