Crowther and Tothill (No 2)

[2017] FamCA 428

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 born. 

3. The father commenced these proceedings in late November 2013 initially in the Federal Circuit Court. It is common ground that the child had at that stage spent little time with the father in the first few years of her life and in 2014, the proceedings were mainly concerned with the father’s time with the child, introducing the father to the child and establishing a relationship with the child.  This included the utilisation of a professional to assist with the re-establishment of the relationship and continued throughout 2015. 

4. In June 2015, the mother filed an application seeking to have the Federal Circuit Court judge who was then hearing the matter disqualify himself in the proceedings, and that matter was resolved by the matter being transferred to this Court.

5. In November 2015 orders were made for the child to live with the mother and for the father to spend time with her on three specific occasions in November 2015 in the presence of the mother, then three specific occasions in December 2015 unsupervised. 

6. The matter was next adjourned to 3 February 2016.  The day before that Court event the mother’s then lawyers ceased to act for her. On 3 February 2016, Dawe J made various orders, including requiring the mother to notify the independent children's lawyer of the residential address for herself and the child and to file and serve a Notice of Address for Service and in default, an information order and recovery order would issue.

7. At around the same time, in the beginning of 2016, the mother relocated to Adelaide from the regional area in which the parties had been living and enrolled the child in school. 

8. A recovery order was executed on 11 February 2016 and on that same date, various other orders were made requiring the mother to move again back to D Town and requiring her to provide various information to the independent children's lawyer. 

9. The day before, on 10 March 2016, the father filed a contravention application which was subsequently heard by Dawe J.

10. On the first hearing day of the contravention application, the mother sought an adjournment on the basis that she had not had time to fully instruct her solicitors and the matter was adjourned over opposition of the father.  The matter was then heard on occasions in April 2016, May 2016 and on 15 August 2016, judgment was delivered.  After delivering the judgment in the contravention proceedings, they were adjourned generally to be listed for further submissions if that were required by the parties.

The Adjournment Application

1. As I indicated, the hearing before me commenced on 4 October 2016 and was listed for four days.  By that stage, the father who had previously been pursuing a “time with” order was seeking orders in terms of his Amended Initiating Application filed in July 2016 that he have sole parental responsibility for the child for a period of time followed by equal shared parental responsibility, that the child live with him, that there be a period of no contact with the mother followed by a period of supervised contact only and increasing over time to, as I understand it, an alternate weekend type arrangement.  As I say, prior to this, I understand the application had been for the child to spend time with him. 

2. The mother’s application at the time of the commencement of the trial was for the child to live with her and spend time with the father on a limited supervised basis indefinitely.  The mother was legally represented at the commencement of the proceedings, including by counsel throughout the October 2016 hearing. 

3. The mother agreed in cross-examination before me today that she knew that she was required to pay for the October 2016 proceedings and both legal representatives’ fees which were in the tens of thousands of dollars or the legal representatives would not act in these resumed proceedings.  She also said that it was likely that the additional costs would also be in the tens of thousands of dollars for the resumed proceedings.

4. The mother also said in evidence today that she attempted to meet with counsel and the solicitor throughout October/November and December 2016, but neither would meet with her until the current (then unpaid) bills were paid.  As I understand it, the mother has still not fully paid for the October 2016 proceedings and on her evidence today, she did not enter into a payment plan for the resumed hearing this week.

5. The mother says that she had initially hoped that her father would pay for – or assist her in payment of – the October 2016 proceedings and as I understand it, possibly these resumed proceedings.  But as it turned out, he was unable to assist her in that regard and she was aware that that was his position by late December 2016. 

6. On 31 January of this year, a Notice of Ceasing to Act was filed by the mother’s previous solicitor and on 9 February 2017, she appeared by telephone at a directions hearing before me and was at that time not legally represented.  That directions hearing was concerned to a large extent with obtaining an updated report from the expert though there was some reference to the dates this week possibly being in jeopardy. The mother was informed that any application to vacate the hearing must be in the form of an Application in a Case.

7. It is to be noted that at that directions hearing on 9 February 2017, the mother’s position was that she objected to there being a further updated report from the expert.  Nonetheless, orders were made for that report to be prepared which, in my view, is absolutely essential for the resolution of the proceedings. 

8. The following day on 10 February, the mother made application to the Legal Services Commission for Legal Aid and on 16 February, was notified by Legal Aid that her application was not granted. 

9. It seems, she subsequently received advice that there would be some form of limited grant of aid in relation to putting a proposal to the father to settle the proceedings. According to the mother’s affidavit, she then changed her position in the proceedings and put a proposal forward to the father in terms of this changed position which was rejected by the father. 

10. On 9 March 2017, the mother filed an Application in a Case and at that stage this was on the basis that she had not received a grant of aid. 

11. On 10 March, the mother was advised by telephone that she had received a grant of Legal Aid, but for reasons which are not entirely clear to me, the mother said as at around 12.30pm today that she still did not know anything further about the grant of aid, except that it was for the trial.

12. Today, the mother represented herself in her application to vacate, though she was assisted on an amicus basis by counsel. I stress that counsel was not instructed and did not act on her behalf, but assisted the Court and the applicant in her application. 

13. The application is opposed by the father, but consented to by the independent children's lawyer. 

14. The mother’s position, essentially, is that she will be disadvantaged if she is not legally represented.  There is no doubt that the stakes are high in this application, particularly as the father’s application has for some time not been an application to spend time with the child, but an application that the child live with him and spend at least initially, very limited time with the mother.

15. It is put forth that the mother does not have the skills to conduct cross-examination or to present her own case adequately, especially having regard to the nature of both – or in particular, the father’s application and to a lesser extent, it would seem, her own application which is not so extreme, for want of a better word, as it was at the commencement of the proceedings. 

16. The independent children's lawyer, essentially, echoes and supports these submissions and also adds that this is a case where there are allegations of domestic violence and submits, as I understand it, that that places the mother in a more difficult position in terms of conduct of the case and in particular, cross-examination of the father. 

17. The father’s position is that the application should not be determined by the individual interests of the parties as the resolution of litigation serves the public as a whole, not just the parties. It is put forth by the father that the application should be considered having regard to division 12A of the Family Law Act 1975 (Cth) and that in particular, the issue of finality in the proceedings is an important one. The father also submits that the Court should take into account, the conduct of the mother in the proceedings as a whole and in particular, steps that she has taken, as I understand the submission put, to delay the proceedings.

18. The father also relies in particular on the effect of delay in determining these proceedings and also relies on the relevant matters which were raised in the case of Aon Risk Services Australia Limited v Australian National University[1] and continuing in the decision of Vickery J of the Victorian Supreme Court in the matter of Namberry Craft Pty Ltd v Watson[2].  The principles coming from that last mentioned case include the substantial delay, the wasted cost, whether there is an irreparable element of unfair prejudice, the concerns of case management and whether the grant of the adjournment will lessen the public confidence in the judicial system.

    [1] [2009] HCA 27; (2009) 239 CLR 175.

    [2] [2011] VSC 136.

19. There is no doubt that an adjournment in this matter will result in a substantial delay.  As the parties are aware, I am a judge from interstate.  I came here to hear the matter in circumstances where, as I understand it, the local judges were not in a position to hear the matter.  The matter was expected to have been resolved in the first four days and we are now facing an adjournment of the second four days over a period of many months.  Although, of course, part-heard matters do receive priority, I can say that it will be a matter of many months before I could return to hear this matter to finality, and this must be considered in the context of proceedings that have been on foot for over three years in the life of a six year old child.

20. The final hearing commenced five months ago.  If adjourned this may result – in fact, I think, inevitably, this will result in yet another updated report from the expert in circumstances where it was difficult to organise an updated report. This was to occur today, but did not because the child was not delivered to child dispute services in accordance with orders.  It will also inevitably result in significant wasted costs for many parties, in particular, the father.  Also, for the independent children’s lawyer, for the Legal Aid Commission, in terms of re-organising the national calendar of the Court as a whole, given that I am an interstate judge, it suffices to say that it will be a heavy toll on the public purse. 

21. So far as the father is concerned, it is unlikely that this could be satisfied by a costs order which, in this jurisdiction, is limited in any event.  The father is ready to proceed.  He has witnesses ready.  The expert, through re-organisation today, will be ready to give evidence on Friday, and so this is a matter that I must take into account. 

22. So far as the issue of the irreparable element of unfair prejudice to the mother is concerned, I raise the issue of whether it could be said that the prejudice to the mother should be found to exist.  Could it be said to be unfair in these circumstances?

23. The mother has, since July last year, known of the nature of the father’s application before the Court.  She knew in October last year that the matter was to be adjourned and needed to be finalised and was intended to be finalised this week.  For five months she has not paid her previous counsel’s bill, or legal representative’s bill, at least in part, on her own evidence.  She knew that money was outstanding and she knew five months ago that she had to come up with something similar for this week.  She took no steps at all for three months to either borrow money, enter into a new payment plan or accept that she would be unable to afford private representation and to seek legal aid at that stage.

24. She did not seek legal aid until just over one month ago, when what must have been known to be inevitable to her happened and her previous lawyers ceased to act for her.  In any event, she does have a grant of legal aid for the trial, according to her oral evidence.  It may be difficult for a lawyer to come on board and be fully cognisant of all the nuances of this case, but it is certainly not impossible and although voluminous material has been filed, it is not an overly complex matter.  As I say, there’s no doubt that the stakes are high.  It is a serious application made by the father, but it always has been.

25. It is suggested that the remedy is to obtain an adjournment, but it may be that the mother will not be in a better position, even if this is adjourned for months.  If the Legal Aid Commission, as has been suggested, cannot afford transcript, then I can’t see how it will be able to afford transcript in three months’ time.  If it is a limited grant of aid, there is nothing to suggest that an adjournment will cure that.  She does have a lawyer in the proceedings, but I am yet to hear the extent to which that lawyer is already across the case, or ready to deal with it. 

26. The mother has responded to the most recently filed affidavit by the father.  Although it was voluminous, it was not complex.  She simply gives a report of everything that happened on particular events.  Contact events between the last occasion in court and the most recent.  It is not a response to an affidavit.  It is simply her version of exactly the same events that the father gives evidence about and appears to have done so quite ably. 

27. As far as the broader context is concerned and the submission made on behalf of the father that there have, in effect, been a number of attempts by the mother to delay resolution of this matter, I do not regard that as overly significant.

28. I do however note that there have been occasions and in particular, even at the most recent court appearance (the directions hearing) the mother opposed the update report and seemed to take the position that she may be able to prevent that being prepared, which seems an odd approach to take when it is clear that an update report was needed and was ordered.  But as I say, that’s not a particularly significant factor, because I don’t make findings about the mother’s conduct generally.  This is a matter where I rely on the undisputed matters between the parties.

29. I am conscious of, and in my view, it is a relevant factor, that these are Division 12A proceedings, and the issues that the father raises about the public confidence in the justice system are particularly relevant, when considering that it is the justice system as it operates within division 12A of the Family Law Act 1975 (Cth) that’s under consideration.

30. While not elevating the principles for conducting child related proceedings as anything more than principles, they do apply to the proceedings, and they apply in mandatory terms. As section 69ZN says “The Court must give effect to the principles in the sections…”

31. The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceeding may have on the child in determining the conduct of the proceedings. The fourth principle is that the proceedings are, so far as possible, to be conducted in a way that will promote cooperative and child focused parenting by the parties and the fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible. 

32. There is no dispute in this matter that this child is acutely aware of the proceedings between her parents and the intense level of conflict generated in relation to them. There is no dispute that neither parent has successfully been able to shield the child from the proceedings, and as submitted by the independent children’s lawyer, it now appears that the child has developed maladaptive mechanisms, on both parties’ evidence, in terms of adjusting to and dealing with the parental dispute.  As the independent children’s lawyer put forth, delaying will inevitably have a negative impact on this child.  It is, I must say, curious that the ICL both conceded these matters and put them forth, but still supported the mother’s application.

33. A further issue was raised by the independent children’s lawyer, not by the mother, that a particular difficulty for the mother in conducting these proceedings without a legal representative arises where there are allegations of family violence and of rape. It is certainly not unusual for allegations of family violence to be made in proceedings of this kind, though I accept that rape is not a common allegation made in these types of proceedings.  The management that the Court would need to take to ensure that procedural fairness is afforded to both parties, including to an unrepresented person would, of course, be applied in these proceedings, but I do note that it’s not a matter where the mother is now in a position of not having any form of legal representation. Her evidence is that she has a grant of aid for the trial, and of course, this will need to be dealt with, regardless of whether she’s represented or not, in a way where she is afforded procedural fairness.  It cannot be the case that by definition, all cases in which an unrepresented person who makes allegations of family violence is irreparably prejudiced by the lack of legal representation, but as I say, in this case, she does, in any event, on her own case, have legal representation. 

1. Having regard to all of the matters referred to, and in particular, the history of the litigation, the context and applying the principles of division 12A to the mother’s application, I dismiss the mother’s application for adjournment and the matter is to proceed.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 March 2017.

Associate:

Date:  26 May 2017