CARDWELL & CARDWELL

[2011] FamCA 108

FAMILY COURT OF AUSTRALIA

CARDWELL & CARDWELL [2011] FamCA 108

FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – where the father’s solicitor seeks leave to withdraw from the proceedings – where the father seeks an adjournment to allow him to obtain legal representation – orders that the father’s solicitor be granted leave to withdraw and the trial dates be vacated

Family Law Act 1975 (Cth)

APPLICANT: Mr Cardwell

RESPONDENT: Ms Cardwell

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1399 of 2009

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not applicable
SOLICITOR FOR THE APPLICANT:	Father appearing in person

COUNSEL FOR THE RESPONDENT:	Mrs Read
SOLICITOR FOR THE RESPONDENT:	Barr Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	No appearance

Orders

1. That leave be granted to Mr Papageorgakis to withdraw on behalf of the father.

2. That the conclusion of trial listed for four days before the Honourable Justice Burr to commence at 10.00 am on Tuesday 1 March 2011 be vacated.

3. That further consideration of the proceedings be adjourned to 10.00 am on Monday 28 March 2011 before the Honourable Justice Burr for mention / directions and the re-listing of the conclusion of trial.

IT IS NOTED that publication of this judgment under the pseudonym Cardwell & Cardwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1399 of 2009

Mr Cardwell

Applicant

And

Ms Cardwell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me today an Application in a Case filed by the father’s solicitor in which he essentially seeks leave to withdraw from the proceedings.  In his supporting affidavit he indicates the reasons why but they are essentially to the effect that the father has not been able to meet all of the charges incurred to date and will not be able to meet the charges to be incurred in the future for the continuation of the trial proceedings.  The Court is grateful for the personal attendance of Mr Papageorgakis to make that application to the Court this morning instead of simply filing a Notice of Ceasing to Act.  I accordingly gave him leave to withdraw and then called upon the father to address the court in relation to his consequent application that the continuation of the trial proceedings listed before me to resume on 1 March 2011 be adjourned from that trial list.

2. I note that there is no attendance by the Independent Children’s Lawyer today and so the Court does not have the benefit of any submissions from the Independent Children’s Lawyer in relation to the father’s application.   It is a particularly regrettable situation as there have been many attempts to conclude these trial proceedings starting with a 1^st Day Less Adversarial Trial hearing on 6 July 2010, the matter then resuming in its conclusion hearing stages before me on 11, 12 and 13 August 2010,  29 and 30 September 2010 and 1 October 2010.  The matter was then adjourned to conclude finally over four days commencing on Tuesday 1 March 2011.

3. I accept that the issues in this matter are complex and that the father is entitled to be properly represented in the further conduct of the trial proceedings.  The mother’s case is concluded save and except for evidence to be called from two psychologists on her part namely, Mr J and Ms N.  So as not to delay the proceedings at that time it was agreed that the father could be interposed and at the conclusion of the proceedings before me on the last occasion, namely 1 October 2010, the father was still being cross-examined by the Independent Children’s Lawyer. The father intends to call his mother, two sisters and uncle and he has also subpoenaed evidence to be called from the South Australian Police.  The Independent Children’s Lawyer will be calling evidence from Family Consultant Ms C.  Thus there is still a good deal of evidence to be received by the Court and that will entail, on the father’s part, cross-examination of the psychologists and the Family Consultant.  He will also need to make his own case in relation to the evidence to be called from his other witnesses identified by me above.

4. The task for the father, I accept, is one that would be better discharged if he was represented by Counsel.  He has indicated to the Court that he has applied for legal aid and that his next appointment with them is in approximately 3 – 4 weeks time.  The Court is therefore, regrettably, in the position of having to remove the matter from the trial list to commence on 1 March 2011 to enable the father to secure representation and relist the matter at a subsequent date.

5. As I said, the Independent Children’s Lawyer is not here to indicate whether or not they are opposed to the father’s application or whether they acknowledge that there is really no choice in the matter.  For her part, Mrs Read for the mother in these proceedings, acknowledges the reality of the situation and has not opposed the adjournment from the trial list.

I certify that the preceding five (5) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 24 February 2011.

Associate: 

Date: