Crowther and Tothill (No 2)

FAMILY COURT OF AUSTRALIA

CROWTHER & TOTHILL (NO 2) [2017] FamCA 428

FAMILY LAW – PRACTICE AND PROCEDURE – Application to adjourn parenting proceedings – Where the proceedings have been lengthy – Where the mother has been given a limited grant of legal aid – Where the extent and terms of the grant are unclear – Where an adjournment would cause substantial delay and expense – Where an adjournment would not be in the best interests of the child – Application dismissed.   

Family Law Act 1975 (Cth) s 69ZN

Aon Risk Services Australia Limited v Australian National University[2009] HCA 27; (2009) 239 CLR 175
Namberry Craft Pty Ltd v Watson [2011] VSC 136

APPLICANT: Ms Crowther

RESPONDENT: Mr Tothill

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4457 of 2013

DATE DELIVERED: 14 March 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Hannam J

HEARING DATE: 14 March 2017

REPRESENTATION

FOR THE APPLICANT: Ms Crowther in person

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Nicholls Gervasi & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. The Application in a Case filed 9 March 2017 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowther & Tothill (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4457  of 2013

Ms Crowther

Applicant

And

Mr Tothill

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by the respondent mother in parenting proceedings concerning a six year old child to adjourn the hearing which has been fixed for a further four days commencing today.  These have been protracted proceedings commencing in November 2013 when the child was nearly three, so they have continued for over half of the child’s life.  The hearing before me commenced in October 2016 and proceeded over four days at that stage and were adjourned for a further hearing and expected completion today and for a further additional three days this week.

2. On last Thursday, 9 March 2017, the mother filed an Application in a Case seeking to adjourn for no less than three months, the proceedings which were fixed to recommence today, on the basis that she did not have Legal Aid funding and had not engaged legal representation to represent her in the resumption of the proceedings today.  The question to be determined is whether the mother’s application should be granted.

Background

1. By way of background, I set out the following brief history. 

2. The parties commenced a relationship in about January 2010, lived together for a short time and had separated by mid-December 2010 when the mother was then seven months pregnant with the parties’ only child.  At the beginning of 2011, the child who is the subject of these proceedings was…