Cousins and Chapman

[2011] FamCA 484

FAMILY COURT OF AUSTRALIA

COUSINS & CHAPMAN [2011] FamCA 484

FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – application by the father seeking that the date of the resumption of the trial be vacated and adjourned – where the matter has a long history – best interests of the child – where it is in the best interests of the child that the matter be resolved – application dismissed. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Cousins

RESPONDENT: Ms Chapman

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 315 of 2008

DATE DELIVERED: 7 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 7 June 2011

REPRESENTATION

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

COUNSEL FOR THE RESPONDENT:	Mr Hemsley
SOLICITOR FOR THE RESPONDENT:	All Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr Ashley Kent

Legal Services Commission

Orders

UPON NOTING that the Court has an expectation that Ms J will be available to give evidence to this Court if required by the Independent Children’s Lawyer and/or the parties by no later than on Tuesday 21 June 2011

IT IS ORDERED THAT:-

1. The father’s Application in a Case filed on 1 June 2011 be dismissed.

2. The time for the filing and service of updated Rule 15 Affidavits by both the mother and the father be extended to on or before 4.00 pm on Thursday 9 June 2011.

3. At the Court’s expense, the transcript of the evidence of these proceedings before the Court on 10, 11, 12 and 13 January 2011 be obtained and provided to each of the parties and the Independent Children’s Lawyer.

4. The Independent Children’s Lawyer use his best endeavours to:-

   (a)    ensure that Ms J has completed all interviews and/or observations she may intend to undertake for the preparation of an updated report to the Court in relation to circumstances impacting upon the child N born … December 1998;

   (b)    secure at least a short report or summary of points to be addressed by Ms J in her evidence to the Court

   with such report to be filed and served by no later than 10.00 am on Wednesday 15 June 2011.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 315  of 2008

Mr Cousins

Applicant

And

Ms Chapman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me today an Application in a Case filed by the father on 1 June 2011.  In it he seeks a number of orders, the primary of which though is his application that the continued defended trial proceedings set to resume before me again on 14 June 2011 be vacated and adjourned.  It is an application that he does not agitate with any great vigour this morning, having determined that in the event that the trial dates were adjourned it would be many months before I would have an opportunity to resume the hearing of the matter.  His application, was neither supported nor opposed by either the mother or the Independent Children’s Lawyer, although the Independent Children’s Lawyer had a clear leaning towards a final resolution of the trial proceedings deeming that to be the best outcome for N.

2. The child N is the principal area of concern for the Court.  She was born in December 1998 and is thus now 12 years of age and clearly developing into maturity.  To have the continuing disputation between her parents hanging over her head whilst she enters these important years of development could not be considered to be the best possible outcome for her. 

3. I say this too against a lengthy background of disputation between the parties.  The parties have a lengthy history in this Court and in fact I presided over an earlier trial of the proceedings between the parties which resulted in final orders eventually being made by consent on 24 September 2003.  That though was not the end of it for N as proceedings were again agitated in 2009.  Even then, the path of the proceedings has not run smooth in that the 1^st Day hearing of the matter was conducted by me on 3 August 2010.  The conclusion and continuation of the trial proceedings then proceeded before me on 1, 2 and 3 November 2010 when the proceedings were adjourned due to health problems encountered by the mother.  The proceedings were then adjourned before me to continue with the hope and expectation of conclusion, to January 2011.  However, after four days of hearing at that time, there were some consent orders made for an interim period with the trial then adjourned to resume part-heard before me for three days on 23 March 2011.  Those dates were then subsequently vacated due to the unavailability of Counsel and the matter was then relisted before me for four days on 14, 15, 16 and 17 June 2011.

4. There are a number of bases on which an application for adjournment is granted but certainly, on balance in this matter, I believe that the imperative here is to resolve as much as is possible the dispute between the parties for the benefit of N.  The child’s best interests must be, in my view, the overriding consideration when I make my determination about that application for adjournment.  Accordingly, I refuse the application for adjournment.

5. Since the trial was conducted before me in January 2011, the father has become self represented.  In his Affidavit filed on 1 June 2011 in support of his Application in a Case, he discloses that it became necessary for him to do so because of the considerable expense to which he has been put over many years in meeting the costs of proceedings before this Court.  In early May 2011 he approached his solicitor who advised his Counsel that he was no longer able to afford to engage their services.  As a matter of courtesy Mr Berman SC attended a directions hearing before me on 6 May 2011 to advise that henceforth the father would be self represented.

6. One of the impediments to the father preparing for the resumption of the hearing in which he will conduct proceedings henceforth himself has been catching up with history and in that regard he secured the electronic copies of the transcript and has been pursuing the task himself of reducing those to writing.  I accept that is a difficult exercise and I accept too that imperative in the exercise of ensuring that the trial proceedings resolve if at all possible next week, that he have available to him the transcript of the proceedings for a part of the trial in order that he may properly prepare himself.  I therefore deem it appropriate that I order, at the Court’s expense, the transcript for 10, 11, 12 and 13 January 2011.  That order, of course, will ensure that each of the parties, the Independent Children’s Lawyer and the Court will receive a copy of same.

7. The father also seeks additional time to conclude an updated Rule 15 Affidavit and again I accept that it is appropriate that he have that additional time to do so.

8. Paragraph 4 of the father’s Application in a Case is now redundant as I have declined his application for adjournment of the trial proceedings and thus it is not necessary for me to consider whether or not it is appropriate that the father and N undertake any confidential counselling in advance of the resumption of the trial.  Similar comments apply to paragraphs 5 and 6 of the Application in a Case filed by the father.

9. I therefore dismiss the father’s Application in a Case filed on 1 June 2011.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 7 June 2011.

Associate: 

Date: