Donne and Scully

[2018] FamCA 817

FAMILY COURT OF AUSTRALIA

DONNE & SCULLY [2018] FamCA 817

FAMILY LAW – Application for Adjournment – Where father seeks an adjournment of the trial – Where the father is presently incarcerated – Where the mother opposes the adjournment – Where the proceedings have been on foot since 2016 – Where the father is not permitted to access internet whilst in prison or as a condition of his parole – Where the father cannot properly prepare for trial whilst incarcerated – Where the interests of justice lie in granting the adjournment.  

Family Law Act 1975 (Cth)

APPLICANT: Ms Donne

RESPONDENT: Mr Scully

INDEPENDENT CHILDREN’S LAWYER: Ms Cope

FILE NUMBER: CSC 839 of 2016

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 12 September 2018

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Lehmann Featherstone

THE RESPONDENT: In Person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Cope Family Law

Orders

1. The listing of the trial of this matter commencing on 8 October 2018 is vacated.

2. The Trial Management Hearing in this matter is to resume at 2:15pm on Tuesday 4 December 2018 by telephone conference, noting that so long as the father remains in custody, the Court will initiate all telephone communications with the parties.

3. In the event that the father is released from custody prior to 4 December 2018, he is to, within 48 hours, either himself or by his solicitor, advise the Independent Children’s Lawyer of that release.

4. All parties have liberty to apply to seek to resume the Trial Management Hearing prior to 4 December 2018 in the event the father is released from custody prior to then.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donne & Scully has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 839 of 2016

Ms Donne

Applicant

And

Mr Scully

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by the father to adjourn the hearing of the trial in parenting proceedings to which he is the respondent, listed to commence on 8 October 2018 with an estimated hearing time of six days.  A trial-management hearing was conducted in the proceedings on 17 November 2017, during which the father indicated that he intended to call, including himself, some 15 witnesses, seven or so of whom were pursuant to subpoena.  Under the orders that were then made, leave was granted to the parties to file their affidavits on or before 4 pm on Monday, 17 September 2018.  Further, there were orders giving the parties liberty to restore the hearing for further procedural directions, and orders requiring the parties to bring the matter back under that liberty to apply, if it was not likely to be ready to proceed on the allocated dates. 

2. The father has exercised that liberty to restore in bringing his application today.  The father’s situation is a little complex.  At the time of the orders on 17 November 2017 he was a free man, albeit, as I understand it, on parole arising from his conviction for some offences.  The father says that in anticipation of preparing for the defence of the mother’s application, he obtained a mobile phone with internet capability, under a false name.  As it transpires, that was – and it appears, he accepts that it was – a breach of his conditions of parole, which required him to first seek leave of his parole officer or the parole board, if he intended to seek to access the internet or to purchase or have access to a device that was internet-capable. 

3. The father says that he sought that consent, but it appears to have not been forthcoming, and in any event, in about March, it appears as though, by virtue of him having accessed the internet, his parole was revoked, and he was thereafter incarcerated.  The father says that since then he has sought to engage with his lawyers to obtain legal aid to assist in the preparation of his case, and it appears as though his lawyers, perhaps different lawyers, remain engaged with him in relation to his criminal proceedings.  However, the fundamental difficulty is that the father is presently incarcerated with – it would seem on his version of events – limited or no access to the internet from B Prison, where he is presently in custody. 

4. I should record that attempts to bring the father’s application on earlier than today have proved difficult to achieve because of some communication difficulties, not always, it would seem, the fault of the prison.  However, today is the earliest that I have been able to achieve all parties on the line in order to deal with this matter.  It is trite to observe that it is now less than four weeks until the anticipated commencement of the trial on 8 October, and as I understand it, the father has presently, in prison, no access to the materials which he would need to have access to, in order to properly prepare for the trial. Further he has limited, or perhaps no, access to the internet from which he could commence to, or if he has commenced, complete, the preparation of materials from his witnesses, including issuing subpoenae to – as I have indicated – about seven proposed witnesses. 

5. That is the father’s predicament, and of course it is largely his fault that he is in that position because, as I have indicated, he acted in a way that breached his parole conditions, which precipitated his further incarceration.  He says that in the event that his parole is not re-instated he will be eligible for release under the sentence pursuant to which he is presently incarcerated, on 6 July 2019.  Of course, there remains some prospect he may be able to get his parole re-instated prior to then. 

6. However, on the other side of the ledger there is the prospect that he may face further prison time arising from the two offences which – he tells me – he remains charged with, and which remain unresolved, arising from him obtaining a mobile phone under a false name.  Unfortunately, other than the father’s assertion as to what his lawyer has told him, namely, that he’s likely to get a suspended sentence or something short of actual incarceration, there is little material before me which would enable me to determine the likely consequence to the father of being charged with those offences.  However, it would seem perhaps unlikely, although I do not really know, that the father would be actually incarcerated for obtaining a mobile phone under a false name, although of course that may depend upon his criminal history, which is not presently before me. 

7. Now, the difficulty which the father faces therefore is, on the one hand, that he’s unable to properly prepare for the hearing on 8 October, but on the other hand, there is some lack of clarity as to when it is that he may ultimately be able to be free of his imprisonment, and able to properly prepare for and participate in the trial.  Ms Lehmann, the solicitor for the mother, points out the mother is the moving party in these proceedings and that she, effectively, to a degree has her life on hold pending the resolution of them.  However, other than delay simpliciter, and the inevitable inconvenience to parties arising from delay in the resolution of their proceedings, there is no prejudice which she can point to. 

8. Therefore, in a sense, on one side of the scale is the father’s inability, partly of his own doing of course, given his unlawful access to the internet, to properly prepare for the trial on 8 October, but on the other side there is the mother’s inability to get on with her life once these proceedings have been resolved.

9. Ultimately it is by assessing where the interests of justice lie that I must determine this application.  Whilst I am mindful of the desirability of parties being able to rapidly conclude litigation in this court, and I do not overlook the fact that the father’s incarceration is the product of his own unlawful behaviour, nonetheless it seems to me, albeit with some reluctance, that the interests of justice lie in granting the application for an adjournment. 

10. In so concluding I am satisfied that the father is presently not able to prepare for the trial in a way which would enable him to have his contentions justly resolved.  As I say, it is with great reluctance and, indeed, through something approaching gritted teeth, that I make that determination.  But nonetheless it seems to me plain that that is where the interests of justice lie. 

11. The only question then is what should now occur.  The father, as I understand it, contends that the matter should be adjourned to a date after 6 July 2019.  However, he has indicated that there is some prospect that his parole may be re-instated prior to then.  It does not seem to me to be just as regards the mother, for the further mention of this matter, or hearing of this matter, to be adjourned until then.  Rather it seems to me, that what should occur is that there should be, within a number of months, some further reconvening of the trial-management hearing, if needs be whilst the father remains incarcerated, in order that the father’s predicament and situation may be able to be further clarified then.  I will hear the parties as to what period of time there should be between today and that further mention of the trial-management hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 September 2018.

Associate:

Date: 12 September 2018