Elton & Batey-Elton

[2009] FamCA 783

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON [2009] FamCA 783

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Elton

RESPONDENT: Ms Batey-Elton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 24 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page

SOLICITOR FOR THE APPLICANT: Rod Madsen Solicitor

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr M.B. McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Forest Glen Lawyers

Orders

1. That wife’s application in the case filed 17 August 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  TVF 2250 of 2004

MR ELTON

Applicant

And

MS BATEY-ELTON

Respondent

REASONS FOR JUDGMENT

1. I am dealing with an application by Ms Batey-Elton, to whom I shall refer in these proceedings as the wife, seeking to adjourn an application for the final hearing of a parenting trial brought by her husband, Mr Elton, to whom I shall refer in these reasons as the husband.  Notwithstanding the nature of the relationship of the parties, it is for my convenience only that I refer to them as husband and wife.

2. This litigation has a long and sorry history.  I have only been given a very short outline of the background, but it seems that the proceedings have been extant since 2004. 

3. The parties still have outstanding financial proceedings, as well as the parenting proceedings.  The parenting proceedings relate to S, who was born in May 1994.  She is therefore almost 15-and-a-half years of age.  The financial proceedings are not at all clear to me, and it does not really matter, because I am not asked to determine those matters.  It seems that the court has bifurcated the proceedings.

4. On 29 June 2009, Jordan J made a variety of orders. 

5. The first 17 paragraphs of the document from the wife’s perspective seem to be controversial.  No matter how I look at those paragraphs, they are simply an indication of the way his Honour perceived matters of history.  They are notations.  They do not influence what I am doing at all.  They may very well be the foundation for the orders, but the orders themselves are very clear.

6. The orders that his Honour made were that the parenting case be listed for final hearing on 24, 25 and 26 August.  There was then an order that the independent children’s lawyer use her best endeavours to arrange an appointment between the wife and the family consultant who has been involved in the proceedings, a Dr L.  Dr L was ordered to do an updated report, including to make some comments about various issues.  The wife says that task has not been completed but I note that Dr L was not constrained by the orders of his Honour about what he was to do.

7. His Honour also ordered that the husband file and serve any updating affidavits of evidence-in-chief by 24 July, and albeit that deadline was not met, the material now seems to be on the court file. 

8. His Honour then ordered that the wife file and serve her evidence-in-chief on or before 7 August 2009.  That has not been done. 

9. His Honour then ordered that the independent children’s lawyer file any updating material by 14 August.  I am told that that has been done.

10. His Honour apparently had a mention of the matter, which might also have been known as a compliance check, some days ago.  His Honour then noted that the matter was to proceed.  There was some debate, apparently, about the issuing of subpoenae, but none of that really affects what I am about to do.

11. On 17 August the wife filed an application in a case.  She sought four orders.  The first was that Jordan J determine her application from 17 June.  There is little I can do about that, because it is not my function to tell another judge what to do.  Insofar as Jordan J may have made some error of law or done something wrong on 17 June, the wife has her remedies.  I note there is no suggestion of those remedies being pursued.

12. The second order seeks that Jordan J correct his orders issued on 30 June in accordance with a letter written on 31 July, as attached.  In fact, it is not attached, but it is attached to an affidavit that the wife filed in support of her application.  The letter addressed to the associate to Jordan J talks about correcting errors of fact not corrected under the slip rule, and seeking that his Honour formally issue amended orders.  I have read that letter, and it does not affect the important part of the order, which is the paragraphs to which I have referred.  There may very well have been some argument about his Honour misdescribing the notations, but they do not affect the orders that he made.  There is therefore no basis for the second of the orders that the wife seeks.

13. The third and fourth orders that she seeks are to vacate the trial date, by which I presume she means that she wishes the matter to be adjourned.  She then sought an order that an interstate judge be appointed to case manage and hear her matter at an early date set for directions. 

14. In respect of the fourth point, there is some argument about whether or not Jordan J has or has not determined a disqualification application.  My understanding after reading the material and listening to what Mr Page and Mr McGregor said in opposing the application, is that his Honour has determined that he is not disqualified.  On that basis, there is no reason for me to, nor should I, interfere in the running of this Registry.  It is totally inappropriate for me to appoint another judge to manage a matter within this particular Registry.

15. That leaves me with the application which is, in reality, an application for an adjournment.  I have explained to the wife that in determining any application, I do so on the basis of the evidence in the affidavit.  I, as part of the task of determining that, listen to any submission that is made as to how the evidence might affect the ultimate determination. 

16. The wife chose to file a document in an affidavit form, but which she concedes is, in reality, a submission, and she asked me to read that to avoid her having to speak to the documents themselves.

17. The affidavit or submission refers to the fact that the orders of 29 June were incorrect.  The wife then refers to various correspondence and the fact that she was not satisfied with the response.  She then said that in the hearing on 17 June, Jordan J was ineligible to hear the matter and, in law, should have disqualified himself.  If that was so, she needed to take other remedies she has, because it is not my function to determine the eligibility of a judge.

18. She then went on to say that further in law, should his Honour purport to act in this matter before determining the application before him on 17 June, he would be acting in excess of jurisdiction because of the fact that his eligibility to hear the matter had not been judicially determined.  As I said, on what I have understood, his Honour has determined the disqualification matter and the hearing on 17 June is complete.  There is no merit in the third paragraph of the wife’s affidavit.

19. The wife then said that on 26 February 2009, Jordan J twice refused her permission to issue subpoenae to allow her to bring evidence of her own choosing and prepare for trial.  That seems to be a contentious issue, but there is no evidence before me upon which I could make a finding that, in fact, his Honour did refuse to allow the issue of subpoenae.  There is certainly part of a letter attached to her written submission, in which the court has responded on 17 August 2009, indicating that a draft subpoena that had been lodged with the court, directed to the independent children’s lawyer to give evidence and produce documents, was at least unnecessary.

20. Under the rules of the court, a litigant-in-person has to seek leave to issue a subpoena.  Apart from the fact that the application was out of time, having regard to the fact that the matter was already listed for final hearing, the independent children’s lawyer was a party to the proceedings and before the court.  I am puzzled as to why it was necessary to issue a subpoena, in any event.

21. The Registrar, on 17 August, refused to issue the subpoena, and in my view, quite appropriately so.  But as the decision on 17 August was a decision of the Registrar, it was open to review.  There has been no suggestion of the review of that decision.

22. There is no basis, therefore, upon which I could determine to grant the adjournment because of the lack of subpoenae.  If, in fact, the wife wanted to issue subpoenae in February, there does not seem to have been any steps taken subsequent to that date with any vigour, that might give me some comfort to say that there is material that is necessarily going to assist the wife’s case.

23. In her affidavit, the wife referred to the fact that she has never been able to obtain documents or even school reports from the school.  But, then again, there has been no application to the court that the husband provide those.  Had the wife complied with the orders of 29 June 2009, it may very well have been an issue that could have been determined as an interlocutory issue. 

24. The wife’s affidavit then went on to say that there were a number of anomalies in his Honour’s dealings with the matter to date, not just “blatant instances of procedural fairness” denied to her.  She referred to the fact that there were a number of circumstances in which Jordan J should have been disqualified, but I have been told by everybody, including the wife, that there were proceedings before the Full Court.  There is some conjecture as to whether the appeal was actually dismissed, or whether it was dismissed on the basis that it was deemed abandoned by virtue of noncompliance with the rules.

25. Notwithstanding I have pressed her to tell me what has happened to the Full Court appeal, the wife says there is really nothing outstanding, other than the fact that she now wants to review the matter in the High Court.  There is no suggestion before me at this stage that any application for special leave has been made to the High Court.

26. There has been some suggestion by the wife of a writ of mandamus being sought from the Full Court. I fail to see how that could possibly succeed, having regard to the nature of that relevant writ. I have concluded that she is talking there about the Full Court of this court. If that is the case, then there is no power under the Family Law Act to issue a writ of mandamus, so it is not surprising that the Registry might have rejected that.

27. The wife, otherwise, does not make any reference to any material which would be normally relevant on an application for an adjournment.  The fact that the wife has, in her own view, not been able to adequately prepare her case is not necessarily the be all and the end all.

28. I am dealing here with an application for parenting orders in relation to a child who is almost 15-and-a-half years of age. The evidence before me is abundantly clear from an expert who, a year ago, said that this child wanted the proceedings to end and did not want to have face-to-face contact with her mother.  

29. At what point in time the court starts to allow that evidence to become a priority is debatable, when looking at the questions of procedural fairness to the party claiming to want to present other evidence.  It seems to me that the wife has had ample opportunity throughout 2009 to put before the court some of the material she says she would rely upon.  The argument about the absence of material because of a lack of subpoena has little merit.

30. Mr Page of Senior Counsel, on behalf of the husband, summarised the orders in the wife’s application and said that a third ground that the wife was arguing was that she was unable to represent herself.  There was a reference made by the wife to the fact that Jordan J had noted a doctor in 2006 had said that the wife lacked capacity to represent herself.  No application has been made for the appointment of a case guardian.  I have been told by Mr Page that a number of efforts have been made to have legal representation provided to the wife but I am not sure whether this is a problem about legal representation or about a capacity to understand the nature of the proceedings.  Whichever it is, there is no evidence before me to suggest that the wife’s incapacity to represent herself is the case.  It seems to me that this is a parenting case that needs to be resolved.

31. In terms of the balance between procedural fairness, therefore, and the important welfare of a child, it seems in this case that this case has gone on for too long, and the child needs the matter over and done with.  On that basis, there is no reason why the trial should not proceed.  The wife’s application in the case filed 17 August 2009 is therefore dismissed.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  28 August 2009