DALZIEL & BELLADONNA (NO.2)

[2009] FamCA 1361

FAMILY COURT OF AUSTRALIA

DALZIEL & BELLADONNA (NO.2) [2009] FamCA 1361

FAMILY LAW  -  PROCEDURE   -  counsel and solicitor sacked on sixth day of trial  -  case adjourned  -  application for another adjournment  -  refused  -  trial to proceed

Family Law Act 1975 (Cth)

FATHER: Mr Dalziel

MOTHER: Ms Belladonna

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9183 of 2008

DATE DELIVERED: 2 March 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 2 March, 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Mr D. Sweeney

SOLICITOR FOR THE FATHER: Matthew Oldham

THE MOTHER: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr N.M. Eidelson

INDEPENDENT CHILDREN’S LAWYER: Donald S. Lampe, DX 38239  Flagstaff.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9183  of 2008

MR DALZIEL

Father

And

MS BELLADONNA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 16 February this trial commenced before me.  It ran for five hearing days.  Monday, 23 February was to be the sixth day.  Until then the mother was represented by senior counsel and junior counsel, and her solicitor instructed in court on each day of the trial.

2. In the course of her evidence the mother expressed dissatisfaction with a number of former legal advisers, including another member of senior counsel, at least one junior and at least one former solicitor.

3. When the court convened on 23 February, senior counsel for the mother advised that the mother had withdrawn instructions to him and his junior and terminated the retainer of her solicitor.  The mother sought an adjournment of a fortnight.  Having heard from counsel for the father and counsel for the independent children's lawyer, I adjourned the matter for a week.  Counsel for the father conceded that an adjournment of a couple of days would be warranted in the circumstances, to ensure the mother was accorded procedural fairness.  The independent children's lawyer spoke then of the balancing exercise involved in determining such an application for an adjournment, in the middle of a long awaited trial. 

4. Prior to the mother's solicitor and counsel withdrawing, I asked that they ensure she had copies of all relevant material.  Very unusually in this court, I ordered and expedited the preparation of a transcript of the whole of the hearing to date, which has been made available to the parties at no cost to them.  The mother cannot be expected to know how rare is such an order but the legal practitioners will be aware of that. 

5. This morning the mother appeared without legal representation.  She has advised the court that she sacked her counsel and solicitor last Monday because she was unhappy about the way they were running her case and their failure to adduce into evidence one or more documents which she thought important. 

6. This morning the mother told me that she initially spoke to one set of solicitors, who said they could not deal with the volume of material in the timeframe.  She then instructed Slater and Gordon, and put that firm in funds.  As she put it, they told her that they applied for an adjournment unsuccessfully, or without an outcome, and she contacted the court on Friday. 

7. I can say that Slater and Gordon filed a notice of address for service on behalf of the mother, on or about 26 February.  They subsequently filed a notice of ceasing to act on or about 27 February.  I have received no notice of any request by Slater and Gordon for the matter to be listed for a further adjournment application.  In any event, they ceased to act within a day.

8. As the mother has said, she did contact my associate on Friday afternoon.  She was distressed at that time and advised that her new solicitors had withdrawn;  I take her to refer to Slater and Gordon.  She has told me that her counsellor (I understand she is referring to a therapeutic counsellor) introduced her to a solicitor over the weekend, who might act for her.  She does not know the solicitor’s surname but her first name was Sulaika.  She said that solicitor would need much more time. 

9. That solicitor is not here, which one would expect to occur if she were seeking to act for the mother and seeking an adjournment in order to do so. 

10. The mother's submission is that she cannot act for herself.  That may be her perception.  The court cannot operate on the basis that an adjournment will be granted simply because a party says:  “I can’t or won't act for myself." 

11. This case has a long history, which I will not rehearse.  There are on foot orders which provide for the father to have supervised contact with the parties’ daughter, R, who is five.  The mother has refused to provide the child for time with her father since January this year.  While there has been reference to the mother “suspending” those orders it is important to make it clear that they have not been suspended by a court.  They remain on foot.  The evidence of the DHS worker, who has been very supportive of the mother, and who has concerns about the child, was that it was not on the recommendation of DHS that contact was stopped.  That was a unilateral decision of the mother.

12. Thus, this is not a case in which there has been no contact for a long time because a court has refused to make interim orders.  It is a case in which existing orders are being ignored by one party.  No doubt the mother would argue she has a reasonable excuse for not delivering the child, as required.  I will say nothing more about that at this time. 

13. The mother has explained some of her reasons for sacking her lawyers.  I made it clear that she does not need to explain and perhaps should not explain, in case she inadvertently prejudices her own case.  It is a matter for her who she instructs.  I can only observe the conduct of the case from the bench.  As I said on the day on which the adjournment was first sought, from an objective point of view her case appeared to be conducted professionally, on her behalf.  Her assessment, of course, is a subjective assessment.  She will be in possession of much more information and is entitled to take the view she has expressed.  That does not mean she is entitled to another adjournment.   

14. All the evidence has been completed, save the expert evidence of Ms G and Ms D.  As counsel for the father observed, the importance of cross‑examination is clear.  There is a reason courts hear oral evidence rather than simply taking evidence on affidavit, and it is the benefit a court has in observing parties and witnesses in the witness box.  While a transcript records that evidence, the immediacy of its delivery can be ephemeral. 

15. I accept that the mother was in a distressed state on 23 February and may not have absorbed the discussion and subsequent ruling on the adjournment application.  The court made it clear that the adjournment granted should not be seen as simply the first of a number of adjournments.  It was made clear then that it would not be open for a solicitor to appear on the adjourned date and assume another adjournment would be granted. 

16. It was made clear that even in the absence of legal representation, the court would anticipate the trial resuming on the adjourned date.  The mother probably cannot know how swiftly competent lawyers can prepare for a trial, or the work that can be done on a heap of affidavits and a transcript of a five day hearing over, for example, a weekend.  Counsel are not infrequently put in that position, because a barrister is jammed or becomes ill or for some other reason cannot appear.

17. The ICL has cogently stated the central fact, which is that this case is about R and it is R’s best interests that must be advanced.  The mother is insistent that those best interests will only be met by an adjournment.

18. If the case were now adjourned it could not resume before me for a considerable time;  it is not possible to adjourn the case for another week or so and resume.  I have other commitments in this registry and elsewhere. 

19. Case management considerations should never triumph over a need to ensure natural justice and procedural fairness to a party, but they can legitimately be taken into account.  The next Magellan sittings in this court are not until June.

20. In my judgment and notwithstanding the mother’s conviction it should not happen, this case must proceed today.  I will give the mother a couple of hours to prepare herself before Ms. G is called.   

I certify that the preceding
20  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.