Fallon and Stirrat

[2013] FamCA 236

FAMILY COURT OF AUSTRALIA

FALLON & STIRRAT [2013] FamCA 236

FAMILY LAW – CHILDREN – Procedural – Application for an adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mr Fallon

RESPONDENT: Ms Stirrat

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: BRC 9207 of 2012

DATE DELIVERED: 11 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 11 April 2013

REPRESENTATION

FOR THE APPLICANT: In person by telephone

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: Johnston Vaughan Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Applicant Father’s Application in a Case file 10 April 2013 for an adjournment of the trial be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 9207 of 2012

Mr Fallon

Applicant

And

Ms Stirrat

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the application of the Applicant Father, Mr Fallon, to adjourn the trial of these proceedings, the trial having been set down for today and tomorrow.  The adjournment is opposed by each of the Respondent Mother, Ms Stirrat, and the Independent Children’s Lawyer, appointed pursuant to section 68L of the Act to independently represent the interests of the children in the proceedings.

2. I reject the application for adjournment for the following reasons.  First, the Father was the party who initiated these proceedings by filing his application in the Federal Magistrates Court on 11 October 2012.  Two matters of relevance flow from that:

   a)First, that it was the Father who enlivened the jurisdiction of this Court to make orders, and he sought orders.

   b)Secondly, six months have elapsed since the filing of the application.

3. Second, the nature of the proceedings: these are child-related proceedings, but they involve a prospective international relocation of the children on both party’s proposals.  That is, on the father’s proposal, the children being relocated to the United Kingdom; and on the mother’s proposal, the children being relocated to Spain. 

4. Consistent with the imperatives that flow from the nature of such proceedings, Registrar Coutts made an order on 10 December 2012 for the urgent obtaining of a Family Report, which was prepared by Ms B, and that report is before me. 

5. On 18 March 2013, there was the listing of an interim application by the Mother, by which she sought an interim order permitting her relocation with the children to Spain.  On that occasion, the Applicant Father was represented by both solicitor and Counsel.  Unusually, given the listings and the demands upon court resources in this Court, I was able to accommodate a trial of this matter for today and tomorrow.  That came about because of my ability to, as the case management Judge for this northern region of the Court, to reallocate matters and take up judgment writing time for myself to enable me to hear the trial. 

6. When it became evident that I could accommodate a trial as early as about a month later than the interim hearing, I stood the matter down to enable both the Father’s then representatives, his solicitor and barrister, to confirm the suitability of the dates for trial with the Father.  That included not just his availability to attend for the trial, but the prospect that he would be able to attend earlier than the trial to enable Ms B, who had prepared the Family Report, to prepare an addendum to her report on the basis of observing interactions and interviews as between the children and the Father.

7. There was no suggestion on 18 March 2013 by the Father’s solicitor and Counsel that he would not be able to prosecute his application at a trial on 11 and 12 April.  Indeed, it was on that basis that the Mother did not press her interim application for hearing on 18 March 2013. 

8. On this application for adjournment, the Father does not suggest that he would pay the costs of the Mother thrown away by an adjournment.  It was not foreshadowed, to either the Mother or the Independent Children’s Lawyer, until very late in the day, in terms of this trial date, that the Father would, in fact, be seeking an adjournment. 

9. The costs incurred today include not just the costs of the Mother, but the publicly funded Independent Children’s Lawyer.  I have no satisfaction that the Father would in fact pay the costs, or have the capacity to pay costs, which would usually be ordered on an indemnity basis in these circumstances of both the Mother and the Independent Children’s Lawyer.

10. Finally, but perhaps most importantly, the principles set out in section 69ZN of the Family Law Act 1975 (Cth) govern the manner in which the court conducts child-related proceedings. The first principle expressed is for the Court to consider the needs of the child concerned, and the impact that the conduct of the proceedings may have on the child, in determining the conduct of the proceedings. Also relevant is the principle that the Court is to actively direct control and manage the conduct of the proceedings, as was sought to be done on 18 March by the orders then made.

11. Another important principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.  And finally, and importantly, that the proceedings are to be conducted without undue delay, and with as little formality and legal technicality and form as possible.  There is an abundance of evidence in this case, indeed it was agitated by the Father in his material for the interim hearing, that the children are well aware of the existence of these proceedings.  Indeed, the Father complains that the Mother has actively involved them.  Whether or not that is so, it is clear from all of the evidence before me, including the Family Report of Ms B, that these children are well aware of these proceedings, and their Mother’s plan for them in terms of moving to Spain.

12. The oldest child, C, is about to turn 14 years of age.  D is ten, and E is seven. Particularly for the older two girls, in circumstances where matters are left in abeyance for a further period, it plainly would not be in their best interests.  Moreover, it is to be noted that on all the evidence, the Father has been aware of the plan to move to Europe from at least since about May, or mid last year.  Moreover, it seems to me that the uncertainty for these children would be added to in circumstances where it would be nigh-on impossible for the Court to accommodate a listing of this matter again, for a two-day trial, in eight weeks’ time. 

13. The simple fact of the matter is, as I have already referred to, that it was in particular circumstances the matter could be accommodated for a two-day trial for today and tomorrow.  On the current state of the listings, to accommodate this matter would involve moving, or delaying, other deserving cases that have long been in the list awaiting trial in the court. 

14. Currently, matters are being listed for trial in this Court not before October of this year.  That is an important consideration also in circumstances where part of the reasoning behind the listing of the matter for trial on this occasion was if the children and the Mother are permitted to relocate to Spain, their education, which is an issue agitated on both sides in the proceedings, could be accommodated by the start of the school year in Spain, at the British school that the mother proposes. 

15. For all of those reasons, the application for adjournment is refused. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 April 2013.

Associate:

Date:  11 April 2013