DENMAN & CARUSO (No.4)

[2019] FCCA 3922

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENMAN & CARUSO (No.4) [2019] FCCA 3922

Catchwords:
FAMILY LAW – Adjournment application – Final hearing – Application refused

Applicant: MR DENMAN

Respondent: MS CARUSO

File Number: PAC 3945 of 2013

Judgment of: Judge Obradovic

Hearing date: 5 November 2019

Date of Last Submission: 5 November 2019

Delivered at: Parramatta

Delivered on: 5 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Mahony

Solicitors for the Applicant: Mahony Family Lawyers

Appearing for the Respondent:	In person
Counsel for the Independent Children's Lawyer:	Mr Maddox
Solicitors for the Independent Children's Lawyer:	Legal Aid New South Wales

ORDERS

1. The application to adjourn the final hearing is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Denman & Caruso (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3945 of 2013

MR DENMAN

Applicant

And

MS CARUSO

Respondent

REASONS FOR JUDGMENT

1. The application for adjournment of the final hearing is refused. The Court accepts the submissions which have been made by Counsel for the father as well as Counsel for the Independent Children's Lawyer as to the adjournment sought not being in the children’s best interest.

2. The solicitors who had previously acted for the mother, were directed to appear before the Court today and explain the circumstances of their ceasing to act and whether the mother had been served with requisite notice of the lawyer’s intention to withdraw. After hearing from those solicitors, the Court granted them leave to withdraw from the proceedings.

3. It concerns the Court greatly that the mother is not ready to proceed today in circumstances where this matter was specifically fixed for hearing.  On the application of the mother’s Counsel together with the father’s Counsel on the last occasion, the Court had allocated very significant resources to this matter.  There has been an expedited family report, which was completed very late on Friday evening and sent through to the parties on Monday morning earlier this week.  The State has also been funding the Independent Children's Lawyer in these proceedings.  That is a significant cost.  The father is self-funded.  The costs to date of this litigation together with the fact that the mother has not complied with a previously made costs order does not give the Court any confidence that she would be in a position to comply with any further costs order if any was made. The Court is further not satisfied that the mother has the resources to pay what might ultimately be a costs order on an indemnity basis in respect of costs thrown away by the adjournment of approximately $20,000 in total. This is an estimate of the costs the father has incurred for three days of hearing where he has instructed solicitors and Counsel has been briefed to appear, together with the Independent Children's Lawyer’s costs of today of at least $2,500.

4. X and Y deserve for this matter to be determined.  It is in their best interest. They have been subjected to a number of interventions.  There has been a number of complaints that have been made to the police.  Y particularly has been subjected to some very invasive procedures as a result of the complaints which have been made. 

5. It is the Court’s view, that the mother has had ample opportunity to put on her trial material.  She has appeared before this Court self-represented on previous occasions.  The mother is more than articulate and intelligent, she understands the process.  What the Court will do is give the mother an opportunity this morning by standing the matter in the list until 12 o'clock, to prepare and have a little bit more time so that she is ready to start at 12 o'clock. The Court will allow the mother to rely on the evidence which has been filed in support of her Application in a Case which was filed after the final decision was made in May 2019.  If the mother needs access to the documents which have been filed in these proceedings, the Court will allow her access to the documents which have been filed, including on her behalf in these proceedings, and the matter can then proceed. The Court will grant the mother leave to lead further evidence.

6. There is a duty solicitor who might be available this morning to assist the mother, but the matter will proceed.  Ms Devine is available to give evidence during these next few days.  The father is here.  He has prepared his hearing.  He has filed his evidence.  The Court notes the mother has her father and mother sitting in the back.  The mother has got support here.  The mother’s father has always supported the mother in these proceedings.  He was not a witness in the previous proceedings. The Court understands that that may be for particular reasons, but in any event, the mother certainly has the capacity, from where the Court sits, to prosecute this matter.

7. The parties also have the option of coming to an agreement if that is something that is possible, but the Court will not delay these proceedings any further either for any negotiations to occur or for the mother to obtain appropriate legal advice as she seeks this morning.

8. The Notice of Intention to Withdraw was served on the mother by her lawyers on 23 October 2019.  That was just shy of two weeks ago.  The mother has known for months that these proceedings are on foot.  It was the mother’s responsibility to ensure that her evidence was filed.  It is not that it needed to be filed by last week; it needed to be filed by 12 September 2019.  The mother has had the opportunity of applying to this Court to vacate the hearing, of adjourning it, prior to today, and she has chosen not to do that. 

9. For all of those reasons, the mother’s application to adjourn the final hearing to a later date is refused.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 5 November 2019