Duarte & Morse (No. 2) - [2017] FamCA 435

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE (NO. 2)

[2017] FamCA 435

FAMILY LAW – ADJOURNMENT – Whether the final hearing of property and parenting proceedings should be adjourned – Whether there is prejudice to the applicant – Whether there is prejudice to the respondent – Where the applicant has appealed an interim judgment – Where the applicant is self-represented – Where the matter is a longstanding matter.

Family Law Act 1975

APPLICANT:

Ms Duarte

RESPONDENT:

Mr Morse

FILE NUMBER:

SYC

737

2014

DATE DELIVERED:

23 June 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

22 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon

Orders

The Application in a Case filed by the mother on 20 June 2017 is dismissed.

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 Duarte & Morse (No. 2) 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 SYDNEY

FILE NUMBER: SYC 737/2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an Application in a Case filed by the mother on 20 June 2017 seeking that the Court vacate a two week trial set to commence on Monday 26 June 2017. The application is opposed by the father. The issues listed to be determined at the hearing to commence 26 June 2016 include final parenting orders and final property orders.
Each of the mother and father filed an affidavit which they relied upon in the hearing which I heard on 22 June 2017.
The father provided a case outline document and a folder of authorities.
The mother set out her affidavit into separate portions, which was helpful as each portion dealt with a specific reason she submitted should lead the court to make the order sought by her or, alternatively, cumulatively would convince the Court such an order was necessary and appropriate. I will address each of the portions of the mother’s affidavit and the submissions she made in relation to same in these reasons, albeit in a limited manner.
The reference in the prior paragraph to “a limited manner” arises because the mother informed me during the hearing on 22 June 2017 that if I refused her application she would make an application to another court seeking to restrain my proceeding with the trial. As a consequence of that statement I informed the mother of the following:
·I was reasonably certain that I would be refusing her application, however, I still needed to consider her submissions and other aspects of the evidence and submissions of the father before I would make a determination and order. I suggested that she start preparation of her application to the “other court” having regard to the possibility that I would refuse her application.
·I informed the mother that I would make an order as soon as I had decided the matter and inform her of that order as soon as possible.
·I informed her that I would provide some short preliminary reasons for making the order so that she would have something to show to the court she proposed to approach.
The reasons herein appearing are preliminary in that I intend to provide more extensive reasons should that be required at the conclusion of the trial, which is to commence 26 June 2017.

BACKGROUND.

The mother and father are the parents of three children H, born in 2006, J, born in 2010, and K, born in 2012.
On 24 March 2014, I made orders following an interim hearing which provided for the parents to have equal shared parental responsibility for the children. The children were to live with the mother and spend time with the father on alternate weekends and during school holidays. The orders also referred to the mother’s then partner Mr T (now the person the mother describes as her husband). Those orders restrained the mother from allowing or encouraging the children to call him “Daddy”.
On 25 July 2014, Stephenson J made orders following an interim hearing, discharging all previous parenting orders and making alternate orders which included that the father have sole parental responsibility for the children, for the children to live with the father and for the mother to have supervised time with the children. The mother was restrained from allowing the children to have any contact with Mr T. Other very restrictive injunctions were made against the mother. A detailed judgment explaining why it was necessary to make those orders was provided.
One of the findings made in the judgment delivered on 25 July 2014 included the finding that “on 24 June 2014 Department of Family and Community Services officers assumed care of the children and placed them with the father.”
On 1 May 2015, I made orders which provided, inter alia, for the mother to have supervised time with the children. The supervisor was to be Ms D, a person known to both the mother and father.
In 2014 an Independent Children's Lawyer was appointed for the children and the Secretary Department of Family and Community Services became a party.
On 3 June 2015, the parties all agreed that there would be a variation to the orders regarding the supervision of the mother’s time with the children, however, the time was still to be strictly supervised by Ms D.
The mother’s time with the children did not take place after about November of 2015. This arose when the supervisor Ms D was no longer available to supervise. There was a hearing before me in February and March 2016 and I made orders on 11 April 2016. The reasons for those orders are relevant to this determination and I hereby incorporate those reasons here for the purpose of setting out relevant facts which in part drive the determination made by me to refuse the mother’s application for adjournment.
The orders made by me on 11 April 2016 provided for the mother to have unsupervised time with the children each Saturday, provided she signed an undertaking to the Court in the form prescribed in the order. One of the items in the undertaking required the mother to not bring the children into contact with Mr T. Another item in the undertaking which is relevant to this determination is the following:
(c)I will not speak to any of the children in relation to my religious beliefs in any way which may convey to the children a negative message about their father’s religious beliefs or otherwise or the manner in which they live with the father or the way in which he undertakes their care.
The mother’s evidence is that she did not sign the undertaking and she has not spent any time with her children following the orders of 11 April 2016. The mother has told the Court she regarded the undertaking, as framed above, as restricting her religious freedom and accordingly decided she would not sign it. She has at all times, to my knowledge, denied that the children are at any risk should they be allowed into the presence of Mr T. That is a matter which will be an issue for determination in the trial.
The circumstance which now presents itself, namely that the mother has had no contact with these three young children is a very significant fact to be considered in determining her application for an adjournment of the trial.
The father in his case outline detailed the orders which have been made by the court in progressing this matter to the trial which is scheduled for 26 June 2017. I here set out that schedule of orders and court events.

(1) Date	Detail
12.02.2014	Father commences proceedings by Initiating Application
16.07.2014	Father lodges a caveat over the Suburb C property
06.08.2014	Mother serves father with lapsing notice
…	Father commences Supreme Court proceedings
…	Order of NSW Supreme Court extending caveat, and proceedings transferred to Family Court
03.06.2015	In the mother’s presence trial directions of 3 June 2015 made by Her Honour Justice Rees
10.12.2015	On notice to the mother, His Honour Justice Le Poer Trench extends time for compliance with trial directions until 29 January 2016 (this included the time for the mother to file her trial affidavit)
29.01.2016	Father files his trial affidavit, affidavits of his witnesses and the final form of his Initiating Application in accordance with trial directions
12.02.2016	In the mother’s presence proceedings listed for final hearing for two weeks commencing 1 August 2016, subject to any application the mother may make to adjourn it.
03.03.2016	On mother’s application (due to her pregnancy) and in her presence the final hearing dates are vacated.
26.05.2016	In the mother’s presence His Honour Justice Le Poer Trench orders the parties to cause the solicitors Warren & Warren to release $100,000 to the father from funds held in controlled monies
17.06.2016	Due to the mother’s failure to comply with order made 26.05.2016 the Registrar of the Court signs the necessary direction on her behalf for the funds to be released on an ex parte basis
06.12.2016	In the mother’s presence His Honour Justice Le Poer Trench directs the mother to file her evidence in support of orders sought in her Response to the father’s Fourth Amended Initiating Application by 31 March 2017, and otherwise lists the proceedings for trial commencing 20 June 2017 (later altered to 26 June). His Honour lists the proceedings for trial check on 27 April 2017
27.04.2017	Proceedings are before His Honour Justice Le Poer Trench for trial check, mother is present. Mother makes no application or submissions in relation to the filing of trial evidence or the vacating of trial dates. Mother’s applications for various relief are heard and judgment reserved
16.05.2017	His Honour Justice Le Poer Trench dismisses the mother’s applications filed 1 October 2014, 11 November 2015 and 11 December 2014.
13.06.2017	Mother lodges a notice of appeal of dismissal of para 5 of the application in a case filed 1 October 2014 and paras 1 & 2 of the Application in a case filed 11 December 2014
20.06.2017	The mother files an application to vacate the trial dates
21.06.2017	As at the date this case outline is prepared, the mother has still not filed any trial affidavits.

The trial directions which were made on 3 June 2015 required the mother and father to file and serve their affidavit evidence for a trial to be allocated after a 18 January 2016 listing. The order made that day also prescribed that the trial would proceed with the Court in both parenting and property issues, evidence being subject to the rules of evidence. This order made clear that the provisions of section 69ZT(3) of the Act had been invoked by the trial judge to exclude the exemptions from specified Divisions and Parts of the Evidence Act 1995. In the hearing before me on 22 June 2017 each party made clear that they understood the hearing to commence on 26 June 2017 would be conducted with the exemption provided in s 69ZT operating to exclude all exemptions otherwise applying under s 69ZT( 1) of the Act.
On 27 April 2017, on the application of the intervener, the Secretary Department of Family and Community Services, to withdraw, I released and removed the said intervener from the proceeding.
On 16 May 2017 I discharged the appointment of the Independent Children's Lawyer. On that day I delivered reasons for that discharge order. Those reasons are in part relevant to this determination.

The mother’s affidavit sworn 19 June 2017

The first heading in the mother’s affidavit is “More Time Required to Locate Father’s Witness”. The affidavit recites that the mother had received a communication from the father’s solicitor advising that at the hearing he will seek to rely upon an affidavit or affidavits sworn by Ms X. The notice further informed the mother that the whereabouts of the witness was not known and the father would, relying on the notice (ss 63 and 64 of the Evidence Act) seek to rely upon that evidence notwithstanding.
The mother informed the Court that Ms X “is the woman who performed an ‘assumption of care’ intervention on my three eldest children whilst at an access visit with the father on 24 June 2014.” The mother says that the “delegation (power or authority) to assume the care of the children …has not yet been considered by the court.”
It is apparent from the submissions of the mother that she is intent to have the hearing in this matter consider matters such as powers of delegation and any wrong doing on the part of officers of Department of Family and Community Services in their interaction with the mother and the subject children in the hearing to be conducted in this matter.
The mother in the hearing on 22 June 2017 informed the Court that she wishes to cross-examine this witness.
The acceptance of evidence in the trial will be conducted according to law. One important matter to be considered in the Court accepting evidence is relevance. Other matters to be considered will include the availability of the witness for cross-examination. Should evidence be permitted to be relied upon, the Court still has to be persuaded that the evidence should be given significant weight. Aspects of prejudice to a party are always relevant considerations where there are aspects of the nature of the evidence which are the subject of objection or are not straightforward and uncomplicated in the manner of presentation.
It is premature to determine at this time what the Court should order in relation to an application of the father to be able to rely upon the subject evidence. The evidence sought to be relied upon is not before the Court at the time of the determination of this application.
The next heading in the mother’s affidavit is “More Time required to Assess Father’s Subpoenaed Material”.
The mother referred specifically to two subpoena she had been given notice of by the father in recent times. The first was to “The Office of Children’s Guardian NSW”. The second was to NSW Police.
The father confirmed that the two subpoenas had been issued. In relation to the first subpoena, the court record showed no documents had been produced. In relation to the subpoena to NSW Police the record showed documents had been produced, however, no request to inspect had been filed. On the application of both parties I ordered that the parties have access to the documents so produced.
There was no other aspect of this portion of the mother’s case which required any further determination. Once again I emphasised to the mother that material produced on subpoena was not evidence in the case until it was accepted as tendered by a party.
I conclude there is nothing in relation to this heading which warrants the hearing being vacated at this time.
The next heading in the mother’s affidavit is “More time to deal with Appeal of 16 May 2017 Orders”.
It is common ground that the mother has appealed against the orders made by me on 16 May 2017. The appeal had been filed by the mother on 13 June 2017. I asked the mother if she had made enquiries as to the probable date upon which the appeal may be heard by the Full Court of the Family Court of Australia. She had not made that enquiry. In order to assist I had my Associate make that enquiry for the mother and I informed the mother I had been informed that absent expedition of the appeal (no application for expedition having been lodged) she could expect the allocation of a date in about 12 months’ time.
I asked the mother to identify any prejudice which would flow to her of the trial scheduled to commence on 26 June 2017 being undertaken before her appeal against the orders of 16 May 2017 was heard. I suggested that if she was dissatisfied with any order which I made at the conclusion of the trial before me she could have an appeal against any such order heard at the same time as the hearing of her now outstanding appeal. The mother identified no prejudice arising from those events.
As a consequence I would not be prepared to vacate the hearing based solely upon this complaint.
The mother then set out the heading “More time required to develop argument of Damage to the Subject Matter of the Litigation”.
In support of that heading the mother said as follows:
18. The intervener and ICL were only dismissed from the case on 27 April 2017 and 16 May 2017, respectively. The issue of whether their involvement damaged the subject matter of the litigation, and if so, whether that provides for the summary dismissal of the case, is still in development.
I did not understand what the mother was referring to in this heading and the words she set out thereunder. I asked her to explain. Her explanation, as best I understand it, is that the mother seeks to establish that when considering section 61DA, the Court would conclude that the father had exhibited family violence by indulging in systems abuse of the children.
The mother failed to provide sufficient evidence of fact in order to establish this matter as a consideration carrying weight in this determination.
One matter which perhaps could impact upon this aspect of the mother’s case which she may not be aware of is that even where the Court finds there has been family violence and as a consequence determines the presumption specified in s 61DA(1) “does not apply”, the Court nonetheless could still make an order for the parents to have equal shared parental responsibility. A further consideration in this application is that neither the father nor the mother is seeking an order for equal shared parental responsibility. The father seeks an order for sole parental responsibility for the children and the mother has given notice that she seeks the Court make no parenting order.
The next heading which specifies the reason the mother says the Court would vacate the forthcoming hearing dates is “More time required to obtain directions pertaining to “Notice of Constitutional Matters”. The mother set out some issues which she says should be the subject of a notice issued pursuant to section 78B of the Judiciary Act 1903. The mother’s submission is that she has not precisely determined the wording of her notice and she certainly has not issued such a notice.
To the extent that there is a requirement of the court to issue a notice under section 78B, the section makes clear the Court would need to be satisfied there was “a matter arising under the Constitution or involving its interpretation” before it would be necessary to ensure that notice is given to the relevant Attorney-Generals. For my part, I can identify no such matter arising in this case.
The mother, for her part, addressed what she said were the Constitutional matters. She specified those matters in her affidavit. In order to answer those matters as a means of assistance to an unrepresented litigant I set out the following:
· The matter to be determined at final hearing, in relation to the children of the parties in this case, is whether any parenting order should be made as permitted/prescribed by the Family Law Act and if a parenting order is to be made the nature and extent of such order.
·    The terms “child welfare risk assessment” have not been defined by the mother and are not defined by the Act.
·    Neither party is seeking the court make a “child welfare order” as defined by the Act.
·    There is ample jurisprudence to answer the question posed about the role of the judge in determining a parenting case. No constitutional issue or interpretation is invoked by the question posed by the mother as to a “fiduciary duty” which she raises.
· There is ample jurisprudence about the courts powers to impact upon a party’s religious practice/observances/beliefs in so far as the power of the court to make orders under Part VII of the Family Law Act.

The final matter to be considered arising from the headings in the mother’s affidavit is “More Time Required to Prepare Final Evidence and Submissions in the Matter”.
It is the mother’s case that she needs more time to prepare her evidence for the hearing. She said that she had been unable to prepare for the trial, in part, because she had been working on submissions for the last hearing before me in May this year, she had two young children to care for, one of whom was still being breast fed. She said she did not have a team of lawyers to assist her as the father had available to him.
The mother said that the father had been tardy in making disclosure in the property case in relation to a trust which she says the husband is a beneficiary. The mother suggests that she may be able to draw upon the trust as she was also named as a beneficiary. No other detail was provided to suggest there was, for example, no discretion in the Trustee to refuse to distribute to the mother.
In her oral submissions the mother informed the court that throughout the first half of this year (commencing in about March 2017) she had enrolled in and undertaken the first semester of a Doctor degree. She informed the court she had attended for two half days per week (assumedly upon an educational facility) to undertake that course. Clearly she had prioritised that activity ahead of preparing her affidavit of evidence in chief for the forthcoming trial. In making that statement, it should be noted that the mother is to be applauded for undertaking such a course, however, her obligations to comply with Court Orders needs to be given a proper place.
When asked about her financial position to meet a costs order should it be made in favour of the father, in the event of the Court granting her adjournment application, the mother conceded she could not meet such an order. She informed the Court she and Mr T own the property in which they reside, however, they do not have cash reserves. She referred to the fund of money reposing in an account awaiting the conclusion of these proceedings, however, she acknowledged that she was seeking an order that the money in that account be paid to the husband. The only avenue for additional funds she said would come from any entitlements she may have under the trust which she identified as benefiting the father.
When asked by me when she would be able to provide her affidavit the mother said it would take another three months.
The father, for his part, submitted the mother had an extraordinary amount of time to file her evidence. He said the first order made requiring her to file her evidence was made two years ago in June 2015. Since then she has been granted extensions and indulgences by the court. The father submitted that there had been an earlier hearing allocated in this matter for mid-2016 which had been vacated on the application of the mother.
On 6 December 2016 the hearing dates for the forthcoming trial were allocated. A pre-trial check was listed for 27 April 2017. At that time further orders were made for the trial which is listed to commence 26 June 2017.
The mother did not make an application for adjournment until filing her Application in a Case on 20 June 2017.
The father has incurred substantial cost in readying himself for the hearing and engaging counsel to appear on his behalf and a solicitor to represent him.
The father submits that the circumstances of the children are such that it is compellingly in their interests to determine the parenting application. Further, the father submits the proceedings carry an emotional and financial cost to him the longer the proceeding remains outstanding.
The father filed his Initiating Application in 2014 and it is still not determined by the Court.
The father submits that the parenting case has become far less complicated by the recent events of the removal of the intervener and the discharge of the Independent Children's Lawyer. Further, he says that the parenting matters to be determined are now narrowed considerably by the appreciation of the orders each of the parents will seek in the trial.
The father provided authorities which he relied upon and which I agree support the case he puts before the Court about whether the hearing should be vacated. Time does not allow me to delve into those decisions in detail.
If the hearing does not proceed in the days allocated then the Court’s ability to provide further dates in the near future or even in three months’ time is severely limited, given the other work load of the Court.
It is unfair to other litigants awaiting the allocation of hearing dates to have two weeks allocated, as in this case, set aside at a time where there is no real ability to allocate another case into those dates.
One of the matters which I need to consider is the nature of prejudice which might flow to the mother should I refuse her application. The principal prejudice I can identify is the mother will have no affidavit evidence to rely upon. Mr Othen for the father submitted that during the currency of the proceeding the mother had filed many affidavits and she may seek leave to rely on any of those which are relevant and which the Court allows her to rely upon. Such a course, I acknowledge, is available as a departure from the Rules and the mother being excused for her failure to comply with the Court’s order.
I raised with Mr Othen if he would, on behalf of the father, have any objection, or identify any prejudice, which would flow to the father should I permit the mother to give her evidence orally. He said no prejudice would flow provided he had an opportunity to consider same and provided none of her evidence took him by surprise. I asked if there would be any objection to me allowing the mother to give her evidence in chief before the husband, then provide the mother an opportunity to cross-examination the father and his witnesses on their affidavit evidence and at the conclusion of the father’s case then allow the mother and her witnesses to be cross-examined. The father, through his counsel said he would not oppose that course.
I conclude that the submission of the father as above set out carries considerable merit.
Having regard to all the above I conclude that justice requires that the mother’s application be dismissed. In so deciding the following matters are the matters which have carried the greatest weight.
·The best interests of the children need to be determined as soon as possible. In particular: whether the children should spend time or live with the mother; whether there needs to be any restriction placed upon the mother while she has the children in her care.
·The proceedings have been before the Court for a very long time without final resolution.
·The trial dates are the third allocated hearing dates. If these dates are not used for the case it may take another six to twelve months before other hearing dates can be allocated.
·The mother has had since June 2015 to file her trial affidavit.
·Whilst acknowledging that the mother is self-represented and has had the task of parenting two infant children since June 2015, she has been able to undertake a tertiary course of tuition during the first half of this year which she said was very challenging.
·The father has incurred cost in preparing for hearing, some of which will be lost if the hearing dates are vacated now and the mother has no capacity to meet any cost order which might be made should the adjournment be granted.
·The mother has her property from the matrimonial property pool yet the father has not been able to access his portion of same other than as permitted by the Court for the purposes of obtaining funds to meet his legal costs and expenses.
·The Court may allow the mother to give her evidence orally. That course of action would see the mother not left in a position where she had no evidence before the Court in relation to the matters to be determined. Further, upon application, she may be permitted to rely on relevant parts of any affidavit she has filed in the proceeding. Such avenues available to the mother and the Court have the capacity to mitigate prejudice to the mother of not having the ability to reduce her evidence to written form in an affidavit.
The above reasons represent the best I can provide in the short time available and I have provided these reasons so that the mother has some reasons to provide to another Court, should she take the action she forecast on 22 June 2017 during the hearing.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 23 June 2017.

Associate:

Date: 23 June 2017