Dunbar and Dunbar

[2010] FamCA 698

FAMILY COURT OF AUSTRALIA

DUNBAR & DUNBAR [2010] FamCA 698

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Adjournment granted

Family Law Act 1975 (Cth)

B & B [1999] FamCA 1992
Cheung v The Queen (1999) 73 ALJR 1093
Dietrich v The Queen (1992) 177 CLR 292
L and L (unreported, Full Court of the Family Court, 13 December 1996)

APPLICANT: Ms Dunbar

RESPONDENT: Mr Dunbar

FILE NUMBER: BRC 3294 of 2009

DATE DELIVERED: 19 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 19 July 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Scott-Mackenzie

SOLICITOR FOR THE RESPONDENT: Butler McDermott Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McLennan

THE INDEPENDENT CHILDREN’S LAWYER Ms Brunswick
Family Law Solutions

Orders

IT IS ORDERED

1. Dr Sayers of Counsel and the mother’s solicitors have leave to withdraw.

2. On the mother’s application, the proceedings are adjourned.

3. The proceedings be relisted for hearing in the Magellan Special Sittings for 5 days from Monday 23 August 2010 - Friday 27 August 2010 as the first reserve case in that week and it be given priority for fixed dates in that week upon delisting of any existing matters in that week. 

4. The father file and serve any amended response by 4.00pm on Monday 26 July 2010. 

5. The matter be listed for a case management hearing at 11.00am on Tuesday 3 August 2010 before Registrar Kane.

AND IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER

1. The children R born … September 2005 and P born … January 2007 spend time with the father on Thursdays from 9.00am until 12 noon and the children M born … January 2003 and R and P spend time with the father on Sundays from 10.00am until 4.00pm all such time to be supervised by Mr B or as approved in writing by the independent children’s lawyer.

2. The parties must ensure that the children not be interviewed by any person at the Queensland Police Service or the Department of Community Services (Child Safety) or medically examined without specific court order. 

3. The mother must not change any educational or living arrangements presently in place concerning the children without approval in writing by the independent children’s lawyer. 

AND IT IS FURTHER ORDERED BY CONSENT

1. The mother must post the children’s passports to the independent children’s lawyer in an express post bag no later than 10.00am on Tuesday 20 July 2010. 

AND IT IS FURTHER ORDERED

1. The mother’s application that she be permitted to take the children to counselling in relation to alleged sexual abuse or for any other purpose is dismissed. 

AND IT IS FURTHER ORDERED

1. The children immediately be removed from the mother’s home and care by S Dunbar and until further order reside with S Dunbar and K Dunbar. 

2. The matter may be listed before the Honourable Justice O’Reilly this week or next week on short notice by direct arrangement with the Associate for further interim orders including in relation to the children spending time with the mother. 

NOTATION:

On the morning of the listed trial 19 July 2010 the mother dismissed her legally aided solicitors Rimmer Lawyers and Dr Sayers of Counsel retained by them and was warned that if she is unable to obtain new legal representation it is unlikely that she will be granted any further adjournment. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3294 of 2009

MS DUNBAR

Applicant

And

MR DUNBAR

Respondent

REASONS FOR JUDGMENT

1. This is a Magellan matter set down for five days commencing today. 

2. Dr Sayers of Counsel for the mother announced that the mother this morning had terminated the retainer of her solicitors with effect that neither he nor they could appear. 

3. The mother then sought an adjournment of the matter on two grounds, first that she have opportunity to arrange new legal representation and secondly that not all of the evidence necessary for a judge to consider as yet has been put forward. The mother referred by way of example to five categories of evidence not yet put forward: the first, two photographs; the second, a child’s jumpsuit;  the third, ongoing police evidence in relation to an ongoing police report;  the fourth, her request that the children be counselled for the obtaining of further evidence by them; the fifth, evidence from P’s childcare centre that it requires a subpoena.

4. Mr Scott-Mackenzie of Counsel, for the father, whilst opposing the application for adjournment, candidly and objectively conceded that I might be troubled about whether the mother should have opportunity to obtain new legal representation, quickly pointing out however that the choice to dismiss her lawyers this morning was hers and that the father ought not be delayed in having the matter heard because of the mother’s conduct this morning. He conceded that the allegations are serious, indeed very serious, and referred to the importance of my considering whether the mother is in the position to conduct her own case observing, however, on the other hand, that whilst it would be difficult for her to represent herself that is the consequence of her own actions this morning.

5. Mr Scott-Mackenzie said that the father’s supervised time with the children at a contact centre has been ceased either by the mother or the contact centre, such that the children’s time with the father in recent times has been erratic, and that the recent report of Ms A the family consultant dated last Thursday 15 July 2010, and the mother’s reaction to that report, perhaps raise significant other concerns in relation to safety of the children in the mother’s care.

6. Ms McLennan of Counsel, for the independent children’s lawyer, submitted that the trial may prove that the children may be at risk and have suffered harm in the care of the mother so that it is necessary for the matter to be heard as soon as possible, the children being M, who is 7 years, R, who is 5 years and P who is 3 years.  Ms McLennan agreed with Mr Scott‑Mackenzie’s submission that the mother may have difficulty representing herself, and further that because she only discharged her solicitor’s retainer this morning the mother has not had any opportunity, realistically, to prepare for the presentation of her own case in person.

7. The principles relating to adjournment are well understood.  I would refer however to Cheung v The Queen (1999) 73 ALJR 1093 at 1094-5 to the effect that although the Court has both the express and implied power to grant an adjournment where this is necessary to do justice between the parties, where a refusal would seriously prejudice a party the adjournment ordinarily should be granted.

8. There is a very wide discretion when a trial judge is asked to consider adjourning proceedings.  In L and L (unreported, EA 96 of 1996, Full Court of the Family Court, 13 December 1996) (reported (1997) FLC 92-729 but not on this point), the Full Court said:

   4.5It is also appropriate…to acknowledge that it is ordinarily in the interests of justice, not only in respect of a particular case but also in respect of the wider concept of public interest in the proper administration of justice, that matters set for hearing in a court of justice proceed to hearing on the dates allocated, rather than be adjourned with consequent waste of judicial time and additional delay in the disposition of other cases awaiting hearing in the court’s lists.

9. Further, in B & B [1999] FamCA 1992, the Full Court said at 22:

   When assessing the issues appropriate to the determination of whether to grant an adjournment his Honour ought to have inquired:

   ·     whether the adjournment was sought for a reasonable period of time

   ·     whether there was adequate reason given for the request for the adjournment

   ·     what prejudice would either party suffer as a result of the adjournment

   ·     whether that prejudice could be met with a costs order.

10. If an adjournment is granted, the matter is likely to be heard next month as the first reserve matter for five days commencing 23 August 2010 in which week there are some four or five judges sitting in the Magellan List with cases already allocated.  It would be unlikely however that 100% of the listed cases for that week will proceed so that this matter, if I were to grant an adjournment, would be the first reserve matter and thus be likely to get on.

11. As to whether the mother has given adequate reason for her request for the adjournment, I will state very clearly that after reading the material in this matter in preparation for commencing the trial this morning I held a strong reservation as to whether it was ready for trial.  In particular, the report of Ms A, family consultant, dated only last Thursday 15 July 2010, provides at par 187 that:

    Since the last Family Report there have been further disclosures reported and [R] and [P] have been interviewed by Police. Currently, there is an issue as to having [P] medically examined to determine whether there has been physical damage.

12. I understand, by way of background to this matter, that it is not unusual that there be further disclosures or reported disclosures at or close to each Court event.  However, Ms A goes on to say that currently there is also an issue as to having P medically examined to determine whether there has been physical damage.

13. Further, at par 196 Ms A said that whilst the information indicates that the Department of Communities is not intervening in the matter there is a police investigation underway. 

14. Mr Scott-Mackenzie told me from the Bar table that the examination concerning P was conducted on 5 July 2010, however, there are no reports as yet concerning that. 

15. Ms McLennan said that whilst there has been a police interview with R a subpoena issued recently to Queensland Police Service is yet to result in the production of relevant police documents concerning that interview and the subpoena was unable to be answered by Queensland Police Service in time for the commencement of the trial today.

16. To top it all off, Mr Scott-Mackenzie today has made clear that it may be likely that the father will amend his application to change it from seeking unsupervised time to a change of residence, that is, for the children to live with him.  Dr W, psychiatrist, has diagnosed major depressive disorder in the father: Dr W’s report 25 February 2010 p14. Dr W said that the father requires ongoing treatment from his general practitioner and/or psychiatrist. However, the father has not done that. 

17. Neither the independent children’s lawyer nor the father raised or argued that prejudice would result if an adjournment is granted.

18. However, both relied heavily on the aspect of safety of the children in the mother’s care.  As I observed during argument, if there are safety concerns then absent an application to this Court for the children urgently to be removed today from the mother then those concerns need to be taken up with the Department which is the body responsible for child safety.  The function of this Court is to hear and determine applications. Absent applications it is the function of the Department to be responsible for child safety.

19. Whether the trial proceeds this week in July or in the equivalent third week next month in August there may not be judgment for a few months so that if there are child safety concerns the Department should again be brought into the matter, presently having declined to intervene: Magellan Reports dated 19 April 2010 and 8 July 2010. 

20. There is public interest in having this matter disposed of as soon as possible.  As I observed this morning this is a Magellan matter and there is thus Legal Aid funding involved which is taxpayer money.  An adjournment will cost the community and the taxpayer not only money but inconvenience and in particular the inconvenience of repreparation by the independent children’s lawyer and the father’s legal representatives.  However I am concerned, having observed the mother this morning, and now, that she should have an opportunity again to arrange legal representation.

21. In Dietrich v The Queen (1992) 177 CLR 292 at 311 Mason CJ and McHugh J referred to the principle that:

    A trial judge is not bound to accede to the application for an adjournment in order that legal representation for an accused can be secured.  However, in the arena of criminal law, and in particular serious offences in the criminal jurisdiction, the appropriate test is for the trial Judge to ask whether the trial is likely to be unfair if the accused cannot obtain representation.   

22. Although that was said in the criminal context, this is a matter in which whilst there are no criminal accusations there are serious matters at stake, and fairness of opportunity to present a case is important for both parties.  I am conscious, as submitted by Mr Scott-Mackenzie, that the mother has brought the present circumstances on herself. However not only are serious allegations of sexual abuse made against the father but there are observations in particular in the report of Dr W that some of the allegations are hopelessly implausible, and indeed observed in relation to the mother the following in relation to possible explanations of matters in the case (p 15):

    The more concerning explanation for the allegations is that [the mother] has developed a paranoid illness which is psychotic in intensity.  There is a history of increasing suspiciousness building to the point in mid February 2008 when she became overly concerned about the actions of her in laws and husband.  She continues to have paranoid beliefs about her husband to the point that she is accusing him of sexually abusing their children in a supervised contact centre.  This hypothesis would suggest that her belief structures are delusional and will not be mollified by reading this report.

    … [The mother] should seek urgent psychiatric treatment through her GP with a copy of this report.  If this is purely anxiety and hyper vigilance in a sensitised woman then it should be decreased by this report and therapy.  If the basis of her allegations is a paranoid and/or psychotic illness this report will not help and she will be unable to support contact between the father and the three children.  If this occurs then serious consideration should be given to a change of residence for all three children.

23. It has been inferred also today that the state of the evidence presently is such that at the trial the independent children’s lawyer may seek that the children be removed from the mother. The independent children’s lawyer usually does not state a position until the conclusion of a trial. On the present material, as there is at least a very real possibility that the end result of a trial may be the removal of the children from the mother it would be unfair to her and not in the interests of justice if I did not accede to her application today for an adjournment to enable her to seek to arrange substitute legal representation.

24. The short adjournment, one month, and it is to be hoped not more than one month, will enable the independent children’s lawyer to attend to finalisation of the document gathering exercise in relation to the examination of P and the police interview of R and to produce an indexed and paginated bundle of documents selected from the subpoenaed documents and will allow the father to reconsider acting on the recommendation of Dr W that he have ongoing general practitioner or psychiatric intervention with a view to a report.  Plainly, as Dr W is a psychiatrist, if the father is minded to accept Dr W’s recommendation it would be desirable that the report and intervention be by a psychiatrist rather than a general practitioner.  However, these matters are entirely to be determined between the father and his legal advisers.

25. In all of the circumstances of the case, I will grant the adjournment.  I will hear submissions now as to any directions you want me to make. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:    

Date:             12 August 2010