Delaney and Mills (No. 2)

[2008] FamCA 846

FAMILY COURT OF AUSTRALIA

DELANEY & MILLS (NO. 2) [2008] FamCA 846

FAMILY LAW – CHILDREN – Best interests – Whether to delay hearing – Whether there is substantial prejudice against the father

APPLICANT: Ms Delaney

RESPONDENT: Mr Mills

FILE NUMBER: NCC 857 of 2007

DATE DELIVERED: 27 August 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 27 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Richardson of Richardson Legal

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. The father's oral application for an adjournment of the three day hearing to commence on 1 September is refused and the listing is confirmed.

2. The parties must each serve the other with a list of objections to affidavit material by 4 pm tomorrow, Thursday, 28 August, it can be done by fax or email.

3. The father and the solicitor for the mother must confer by 9 am on 1 September and prepare a list of objections conceded and objections disputed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 857 of 2007

MS DELANEY

Applicant

And

MR MILLS

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings between the parents in relation to two children, S who is nearly 11 and N who is 13.   The proceedings were listed for hearing to commence on 6 August.   But the mother failed to comply with the timetable of filing of affidavit material.  She filed her affidavit and served it on the father on 2 August, only three or four days before the hearing.

2. Apart from that he was ready for the hearing to proceed.   The husband sought an adjournment of the hearing because of insufficient notice of the contents of the wife’s affidavit and as a result of that and also of the Judge disqualifying herself from hearing proceedings between the parties, the hearing was adjourned.  The List Clerk’s record shows that the parties were offered dates in November.  Counsel for the children's representative and the mother agreed to those but the father declined.  Dates were offered in the week commencing 8 December when both the Counsel for the children and for the mother were available, but the father telephoned the list clerk and rejected those dates because, he said of commitments the children had in December.

3. January was also considered; Counsel for the mother was available then; Counsel for the children offered to pass the brief to other Counsel because he wasn't available.  The father rejected those dates because he said he was planning to have holidays.  Accordingly February was then considered, but there were no dates available. The only alternative dates then available for the matter were in late March.

4. There has now become a judge available to sit here next week and Ryan J listed these proceedings for a three day hearing to commence on Monday 1 September.  The Counsel who appeared for the children has passed the brief to Ms Burns and she is available.  The mother and her counsel are available to proceed with the matter next week. The father is self represented and available too.  But he says he is prejudiced if the matter proceeds as fixed and seeks a further adjournment. Thee first reason he gives for prejudice is that (he says) he hasn't had a reasonable time to gather further evidence, although he has not specified what evidence.   Despite numerous opportunities he hasn't mentioned any particular evidence that he needs or any witness that he needs and indeed he doesn’t seem to have mentioned any issue that he says has arisen as the result of the mother's affidavit that wasn't already defined as an issue when the directions were made for the filing of his affidavit material.

5. In the circumstances it seems to me that the husband is seeking to delay the proceedings and that is his primary purpose, not a genuine purpose of avoiding any prejudice in terms of the preparation of the matter.  It is clear that he has read the affidavit.  Nearly a month has passed since he was served with it.  He does not say he has done anything in response to what is in the affidavit by way of searching out further evidence, or ascertaining what is available or speaking to or locating any potential witness.  The court does not accept, as he claims, that he genuinely believes that because of the late serving of the affidavit, now that nearly a month has expired he is unfairly prejudiced if the hearing proceeds on 1 September.

6. There are indicators in the proceedings that this is a matter of serious conflict between the parents and such a situation involves serious emotional problems for the participants and also for their children.  Both children, N and S, are old enough to know about the proceedings and no doubt know that they are on and know that their parents are fighting about them.  They have been interviewed about it and that in itself is a stressful experience --for the children to be asked questions, to know that what they are going to say is going to be reported to each of their parents, and to believe that if they are not careful what they say may be seen by one of the parents as a disloyalty to that parent's views. 

7. The writer of the family Report reports that:

   "The parent's relationship is extremely poor." 

8. The report writer also says:

   "The father has an inability in terms of parenting responsibility to promote the children's relationship with the mother and other members of her family."

9. She also raises issues about controlling behaviour by the father and aggressive behaviour by him and particularly controlling behaviour towards the mother in relation to the children's time with her.   

10. There is the other indicator which is in relation to the conflict between the parents.  Ms Richardson, the mother’s solicitor, is a respected practitioner in the area and says she has been practising in Family Law for 22 years.  Her view is that this is the worst family law case she has dealt with in 22 years in terms of aggravation and abuse.   

11. The father rejects the opinions of the report writer and Ms Richardson.  He has a completely different view. He says they are getting on well and communicate well. 

12. On the face of it, the report writer and Ms Richardson both have more objective positions and have more experience of such conflicts.  Their views should be preferred. 

13. There are very good reasons why it would be contrary to the children's interests to have the matter go over for another six months when there is time available for the hearing to proceed next week.  The father's view that other matters such as holidays and children's December commitments, pantomimes and so forth, and school commitments, are more important than having this case decided is contrary to my view of what is best for the children. The sooner these proceedings are over and the children have an outcome and can get on with their lives without this sort of fight hanging over them, the better it will be for them.

14. In terms of the mother's interests she complains that it is very difficult for her in terms of the times she gets to see the children and there is also the stress that she would be occasioned by the hearing of the proceedings being delayed for another six months. 

15. In terms of the costs that the mother will incur if there is an adjournment, there will be costs of updating material.  That is going to involve further affidavits detailing the history of events after today up until nearly the hearing.

16. There will also be the costs thrown away by the adjournment in terms of any costs she has incurred now for preparing for next week and any costs she is committed to in terms of Counsel’s fees for next week.  So there is a substantial prejudice to the mother if the adjournment is granted. 

17. The finding is that there is substantial prejudice to the children and the mother if it the father’s application is granted and the Court is not satisfied that there is any significant prejudice to the father if it is refused.

ORDERS DELIVERED

RECORDED : NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

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