Fournier and Noelle (Adjournment Application)

[2007] FamCA 845

FAMILY COURT OF AUSTRALIA

FOURNIER & NOELLE (Adjournment Application) [2007] FamCA 845

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENTS - Mother’s application for an adjournment of final hearing to allow her to obtain legal representation, because of late delivery of father’s affidavits and her assertion that she has a medical condition for which investigative tests are to be carried on the Wednesday of the week of the trial – mother dispensed with legal representation of her own accord – mother can afford presentation – proceedings already adjourned on numerous occasions – start of hearing postponed to permit the mother time to read the father’s affidavits and court will not sit on the day of the mother’s medical tests – best interests of children considered – application for adjournment refused.

Family Law Act 1975 (C’th)

APPLICANT: Mr Fournier

RESPONDENT: Ms Noelle

INDEPENDENT CHILDREN’S LAWYER: McBain Lawyers

FILE NUMBER: MLF 6279 of 2003

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 August 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms H. Dellidis

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

McBain Lawyers

Orders

1. That the mother’s application for an adjournment this day be refused. 

2. That the independent children’s lawyer have leave to call Ms Michelle Crighton, solicitor, by telephone for the purpose of cross-examination or evidence in chief.

3. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

4. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Fournier and Noelle

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6279 of 2003

MR FOURNIER

Father

And

MS NOELLE

Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me as the final defended hearing of proceedings concerning S born 25 April 1996 and T born 23 June 1999.  The hearing was estimated to take not more than five days and is adjourned from 19 April 2007 when the matter was first listed for a defended hearing of two days duration.  The mother, who represents herself, has made an application for an adjournment.  The applicant father also represents himself.  He opposes the adjournment.  Mr McBain, who is the independent children's lawyer for T and S, is represented by Ms Dellidis of counsel.  The independent children's lawyer opposes the adjournment.  These reasons set out briefly why I will not allow the mother's application for an adjournment and will order that the matter proceed. 

2. The mother's adjournment application appears to be based on three matters.  First, she says that this is a matter of some complexity and "it looks to me like it would be better if I had a barrister".  This matter is not, in the scheme of things and as I have read the papers, a complex matter in relative terms; that is, relative to other matters before the court.  However, I have no doubt that the 2006 amendments to the legislation may be somewhat foreboding and, for a self-represented litigant, it may appear to be a complex matter.  The Act has been amended for over a year now.  It will probably be amended again.  I am not satisfied that the mother could not represent herself in circumstances where she has known about this hearing date for 4 months and only discharged her legal representative, Mr Chris Gunasekera, late last week. 

3. The mother says, from the bar table, that she wishes to retain the services of a solicitor for these proceedings.  These proceedings have been on foot since 30 October 2003 when they were instituted by the father.  The mother commenced being represented by Mr Chris Gunasekera, solicitor, in May 2005, or so it would appear from the record of the court.  On one occasion, 3 October 2005, he ceased to act for the mother and I will come to that shortly.  Otherwise, Mr Gunasekera appears to have acted for the mother on and off until, it would appear, last Thursday, 9 August 2007.  The mother says that she has discharged his services because she is not confident in him and he has not given her the correct advice. 

4. On the same day as the mother dispensed with the services of Mr Gunasekera, a bundle of documents were filed and served by the mother, all showing either her address as the address for service or that of Mr Gunasekera.  They were: 

   a)lengthy affidavit by her sworn on 9 August 2007 which is endorsed as having been prepared and settled by Ms Barbara Phelan, barrister;

   b)an affidavit by Ms A which was prepared by Chris Gunasekera and settled by Ms Barbara Phelan of counsel;

   c)an affidavit by Ms M which was prepared by Mr Chris Gunasekera and settled by Ms Barbara Phelan of counsel;

   d)the affidavit of Dr W which is expressed to have been settled by Ms Barbara Phelan, barrister. 

   Then there is Mr Gunasekera’s notice of ceasing to act on behalf of the mother. 

5. The mother says that there is no difficulty in funding which prohibits her from getting a solicitor.  She says that she is employed and her partner, Dr W, is a medical practitioner.  The mother indicates that that they have more than sufficient money to retain the services of a legal practitioner, they just do not want Mr Gunsekera.  It is unfortunate for the mother that she has left it so late in the proceedings to make that choice.  

6. The mother said, in particular, she would be retaining Mr Olazego, a Nigerian gentleman of the firm Koenig and Simons of Albert Street, East Melbourne. 

   
   

   I requested that the independent children’s lawyer join with the mother in making enquiries of Mr Olazego’s availability to come to court for this hearing.  He does not currently act for the mother as I understand it.  It appears that

   
   

   Mr Olazego is a consultant at the named firm.  He has not signed the High Court roll from which I infer that he does regularly do family law work, if at all, because that is a prerequisite for a right of appearance in this court.  He is a migration agent as well as a legally qualified practitioner.  The two other solicitors in that firm apparently have general practices and, presumably, can appear in this Court. 

7. I am advised by counsel for the independent children’s lawyer that her discussion with the mother and Mr Olazego revealed that the wife contacted Mr Olazego last Tuesday, 7 August, and he indicated at that time that he would not be available today or for some time, that he would need to peruse the file and he may have to get counsel's advice.  On Wednesday, 8 August, the mother apparently dropped off documents for him to read and he advised her that she would get an adjournment (he was wrong).  On Thursday, 9 August, he apparently examined the documents in a cursory fashion, has not spoken to or retained a barrister and does not consider at the moment that he acts for the wife. 

8. The second matter upon which the mother bases her application for an adjournment is that last Monday, 6 August 2007, she detected a lump in her left breast.  She is in a relationship on a residing basis with one Dr W.  He has confirmed to her that there is a lump in her breast.  From last Monday morning at approximately 8:30am until Friday, 10 August 2007, it appears that nothing was done in relation to the investigation of the mother's breast lump.  On Friday, Dr W completed a referral for the mother and she has now secured an appointment for herself at 11:30am on Wednesday, 15 August 2007 for a scan, aspiration or other investigative testing.  There is no medical evidence before the court at all.  This is merely what the mother says from the bar table. 

9. The third basis of the mother's application for an adjournment is that she was only served today with the father’s recent affidavit material.  That seems to be correct.  However, I will stand the matter down to give her sufficient time to read it.  

10. The father opposes the adjournment because he says that he has travelled from South Australia and brought his current wife, Mrs Fournier, with him and that this is a matter which should be determined as soon as possible.  In relation to medical treatment or investigations that are going to be undertaken for the wife in relation to the lump in her left breast on Wednesday, the husband has no objection to the court not sitting at all on Wednesday. 

11. The opposition of the independent children's lawyer is essentially that the interests of the children require that the matter be determined as soon as possible and that this application by the mother comes after a significant and long-standing history of her ceasing to involve herself in these proceedings to a reasonable degree.  The independent children's lawyer says that the mother failed to attend a case assessment conference on 15 December 2003, failed to attend a contravention application hearing before Mushin J (when it was alleged that the mother contravened orders) on 24 May 2004 and then failed to attend the hearing of a contravention application (in which she alleged that the father had contravened orders) before Joske J on 21 July 2004. 

12. On 3 October 2005, the proceedings were brought on for final hearing before Dessau J.  On that day the matter was adjourned with a notation by the court that it was adjourned to permit the mother to get legal representation.  Up until that time it appears that the mother had been represented by Mr Gunasekera but he had gone off the record at some date that I cannot determine because there is no notice of ceasing to act as far as I can see.  In the context of that hearing, a report had already been done by Ms B, family consultant, on 22 June 2005.  That report recommended an immediate resumption of contact, as it was then known, between the children and the father.  The mother attended the interviews for that assessment.  As indicated, the final hearing did not proceed because the mother obtained an adjournment on the basis that she wanted to obtain legal representation.  

13. Mr Gunasekera put himself back on the record as the mother’s solicitor on 3 November 2005.

14. In June 2006, various orders were made for the parents to file updated material by 20 October 2006 or some date like that.  Neither party did so.  A further report was undertaken by family consultant Ms B in September 2006.  The wife and children did not participate.  I am satisfied from having read that report that it was the mother's responsibility to get the children to court to see the family consultant.  The report read, in part, as follows:-

    [13] [S] and [T] are at the centre of a dispute between their mother Ms [Noelle] and their father Mr [Fournier].  The current Court Order allows Mr [Fournier] to see the children for four hours on alternate weekends.  A Family Report was completed in June 2005 following an extended period of time when the children had not seen their father, and the Consultant’s recommendation was that the children’s time with their father should resume immediately, that it should be consistent and that it should include overnights as soon as practicable.  This apparently has not occurred and the situation has now deteriorated to the point where urgent action is required. 

15. In due course, the matter was set down for a pre-trial conference on 2 November 2006 in anticipation of a final hearing on 30 January 2007. 

16. Shortly after the pre-trial conference in November 2006 it became apparent to the independent children's lawyer that the matter could not proceed and he sought that the hearing date be vacated and another one appointed without the need for anyone to attend.  It is said that the mother would not cooperate with an administrative adjournment and on 30 January 2007 it was necessary for there to be an appearance before Dessau J.  On 30 January 2007 the independent children’s lawyer appeared before the court, the father sent a letter indicating his consent to the adjournment and, it appears, that the mother did not do anything.  The matter was, somewhat inevitably, adjourned due to the unavailability of the family consultant.  There was no adjustment sought or obtained to the orders whereby the children spend time with the father in accordance with the family consultant’s recommendations or otherwise.  The new date allocated for the final hearing was 19 April 2007, before me, estimated to take two days. 

17. On 29 March 2007, the matter was listed for mention before me by telephone but there was no appearance by or on behalf of the mother.  I made certain directions in anticipation of the trial including that the independent children’s lawyer obtain evidence, by inspection, about the father’s accommodation in Adelaide and that, in the event that the mother failed to appear on the hearing date, the father and the independent children’s lawyer each have liberty to apply to proceed with the matter on an unopposed basis. 

18. On 19 April 2007, the matter was listed before me.  The father appeared in person.  Ms Phelan, of counsel, appeared for the mother.  Ms Dellidis, of counsel, appeared for the independent children’s lawyer.  On the application of the father (not the mother), the final hearing was adjourned yet again.  It was said by the father that he wished to relocate his household to Melbourne and to frame the current litigation in that context.  The adjournment was supported by the mother and the independent children’s lawyer.  Further interim parenting orders were sought, and made, by consent which provided that the girls live with the father for five days a fortnight if, and when, he relocated to Melbourne.  If he remained in South Australia, there was one period of holiday time to coincide with the girls school term holidays in June/July 2007.  

    
    

    I ordered that an updated family report be prepared. 

19. The third family report was undertaken by Ms B at the end of June 2007.  The independent children's lawyer has advised me through counsel that on 25 June 2007 he received notification from the mother that she would not be able to transport the children to the court and therefore the independent children's lawyer undertook to do so himself.  He went to the children’s home and collected them and their suitcases of belongings in anticipation of the time which they were to spend with the father during the last school term holidays commencing at the conclusion of the appointments with the family consultant.  

20. It transpires that, in spite of what the father said on 19 April 2007, the father did not relocate to Melbourne.

21. I have not received evidence in relation to the factual matters submitted by the independent children's lawyer in relation to the mother's unsatisfactory participation in the proceedings.  The mother does not agree that the allegations, as to when she did and did not attend court or appear at significant court events, are correct.  She concedes that she is not sure of the dates when she did appear and acknowledges that sometimes she has not attended court when the matter was listed for a hearing.

22. The mother submits that after the first assessments by family consultant

    
    

    Ms B, she (the mother) decided that it was not a process worth pursuing.  She says that the family consultant did not record what she said so she thought there was little need to come back; in particular, "it was worthless for me to come back if what I say is not recorded." 

23. In relation to the independent children's lawyer needing to transport the children to court for the assessment on 29 June 2007, the mother says she readily took up the offer of assistance and that her failure to attend did not in any way reflect a lack of preparedness to be involved in the proceedings; she just did not think it was important that she attend. 

24. I can make no findings in relation to contested matters involving the mother's lack of participation in the proceedings to date.  However, even on the mother's version of events, her participation has not been great, particularly, the mother’s failure or refusal to attend the last two assessments by the family consultant. 

25. The mother says that the reason that she could not attend on the family consultant on 29 June 2007 is that she was required at disciplinary proceedings involving a student nurse.  The mother believed that, in the event she did not attend to support her student nurse, a finding may be made against the student nurse which could see her (the student nurse) repeat the whole of her studies for one year.  This student is a woman of mature years, apparently, with a family of her own to support, and the mother thought that it was essential that she attend that case in preference, I infer, to the family consultant's third assessment in these proceedings. 

26. The mother also says that she is particularly anxious about her own health, that since last Monday it has gradually dawned on her that she may have a life‑threatening physical condition - that is, the that lump in her breast may be cancerous and malignant - and that the last place she wants to be is in court. 

    
    

    I have sympathy for that view.  However, today is the first notice that the father or the independent children’s lawyer has had of the mother seeking an adjournment on this or any other basis.  The late notice has necessarily prevented the father and the independent children’s lawyer from verifying the accuracy of what the mother says from the bar table over and above the independent children’s lawyer having had some discussions with the solicitor whom the mother says she wishes to have act for her.

27. It is as well here to examine what appears to be the history of the medical reasons for the mother's application for an adjournment.  The mother says that it was at about 8:30am on Monday, 6 August 2007 that the mother's partner, Dr W, detected a lump in her left breast.  Dr W was not in his surgery again until Friday, 10 August when he then wrote a referral for the mother to attend upon a radiologist.  On Saturday, 11 August the mother attended the radiologist's office and secured an appointment for herself for 15 August; that is, Wednesday of this week. 

28. On 6 August 2007, after 8:30am, the independent children's lawyer received a telephone call from the mother or was otherwise contacted.  The independent children's lawyer through his counsel says that the mother asserted that she had work commitments to look after a patient who is a cancer sufferer and that the other nurse who is responsible for care of this patient was away and that the mother could not be at court for the whole of this week (of the trial). 

29. The mother disputes the version given by the independent children’s lawyer.  She says that is not what she said at all.  She said that she did mention to the independent children's lawyer that a nurse who may have covered for her this week was unable to do so because that nurse is a donor of stem cells for her ailing brother.  It is a conflict in information that makes no difference.  It is common ground on both versions that, as at 6 August 2007, the mother was not referring to her own medical condition as a basis of adjourning the matter; she was referring to her work commitments.

30. On Tuesday, 7 August 2007 the mother contacted Mr Olazego, as I have previously recited.  On 9 August 2007, the mother and Dr W and others of the mother's witnesses swore affidavits.  None of those affidavits contained any reference to a lump in the mother's breast or to her health.  The affidavit of Dr W does contain the following statement, which I regard as somewhat telling of the mother's preparedness for today's hearing.  I quote from paragraph 23:

    I state that the first time that either [the mother] or I saw the relevant section, 60CC, of the act was late on 7 August 2007 when it was emailed to us.  It is only after seeing this that I now clearly understand the point of the court processes.  I also understand why, when all that [the mother] was trying to do was to avoid contact with [the father] as a result of their controlling and abusive relationship, she has managed to now get herself into such difficulty and has become increasingly frustrated with the process.  I am certain that if this section and its importance had been explained to her at any time over the past three years, she would have acted very differently and the whole matter would have been resolved much more easily long before now.  We delivered drafts of our affidavits to our solicitor on the last weekend of July but it is only today that they have been finalised.

1. Dr W makes no mention in his affidavit of the mother having a recently detected lump in her left breast in respect of which he would shortly make a referral for some tests.  

2. The independent children's lawyer submits that an adjournment will not do justice to the father's case.  That may well be true, but it is not determinative in proceedings of this nature.  What is determinative, or at least paramount, is the best interests of the children.  Fairness to the parties is secondary to what is in the best interests of the children, although it is well recognised that a party being able to prosecute his or her case effectively must be in the best interests of children because that is the basis upon which determinations are made. 

3. The independent children's lawyer refers to various extracts from the reports of Ms B, the family consultant.  I am mindful that these reports have not been tested in cross-examination.  However, I agree that there are disturbing comments in relation to the effect of further adjournments on the children.  In the report, the family consultant refers to T as being stressed due to long-term paternal separation - that is, separation from her father - and to S being tearful and, in her assessment, "emotionally fragile and vulnerable, and unless radical steps are taken now, it will be too late for either of these children to have a meaningful childhood relationship with their father". 

4. The family consultant in September of last year referred to this matter as being one of some urgency.  In June 2006 she referred to it as being one which should be dealt with as quickly as possible.  I accept the submission of the independent children's lawyer that there is some prima facie evidence that a further adjournment will adversely affect the children's emotional wellbeing. 

5. I note, in favour of the mother's application for an adjournment, that she appears to have complied with the orders made on the last occasion for the children to spend time with the father.  It was ordered that the children see their father from the conclusion of the hearing on 19 April until 23 April, and they did so, and then from 29 June to 13 July, when they did so in South Australia.  The mother informs me from the bar table and I accept that the return journey of the children was by aeroplane because she was prepared to pay for the trip rather than have the father drive them back because they found the journey to be quite onerous, so to that extent she has more than facilitated the time to be spent; she has made it easier and more enjoyable for the children. 

6. Apart from the specific grounds which I have mentioned, underpinning the whole of the mother's application for an adjournment is the general plea that she simply does not feel up to participating in the proceedings.  She says that she is confident that she cannot prosecute her proceedings adequately and this is not just because she is not a lawyer but because she is under the shadow of a serious health condition about which she will not have any more information until after Wednesday.  As I have indicated, I have sympathy for her position but the fact is that few litigants in person actually present their own case as a matter of choice; they do so out of necessity.  I am also sympathetic to the mother’s plight of having recently detected a lump in her left breast.  That is not rare for women in our society.  It is always upsetting.  However, the mother is a health professional, she lives with the practitioner who is her doctor.  

   
   

   I accept the submission made on behalf of the independent children’s lawyer that, as neither the mother nor Dr W chose to do anything proactive about the breast lump from Monday to Friday of last week, absent some evidence now, it does not now warrant an adjournment of the case given that I will not sit to hear this matter on the day the mother’s tests are scheduled to take place.

7. It is the mother's position that she can afford a lawyer, so it is a pity she does not have one because a lawyer may have alleviated some of the mother’s anxiety about presenting her own case.  However, not having a lawyer is by no means a disqualifying event to having a hearing.  As I say, many litigants are reluctant advocates on their own behalf.  The scheme of the legislation is that litigants can look at the various considerations, like signposts, and present their case.  That is what the mother will have to do.  The timing with which the mother has dispensed with Mr Gunasekera’s services (on the same day as he filed her updated material) is a matter over which the mother has had control.  I note that I directed Mr Gunasekera to remain in Court until after I delivered these reasons and he has done so. 

8. As indicated, because of the scheduled medical investigations on the Wednesday, 15 August 2007, I will not sit to hear this matter at all on that day.  I will also give the mother as much time as she requires today to read through the affidavits upon which the father relies, even if that means not opening or starting the evidence until tomorrow.  However, as matters currently stand, that is the extent of the concession which I consider it is appropriate to make weighing, as I must, the need for finality in these proceedings, the interests of the children generally, the fact that there have been too many adjournments already and, finally, some fairness to the father and the independent children’s lawyer who have attended for the hearing and to whom no prior notice was given of the mother’s application for an adjournment (when it appears that there could have been).

9. Finally, following submissions in relation to the adjournment, I made inquiries of the listing authorities at the court and ascertained the matter could not be brought back on for a significant period.  As I will not sit on Wednesday, we now have three days of hearing left.  This is a matter estimated to take five days.  It will proceed even if we run past Friday of this week.  I do not want the parties to be concerned that we will run out of time.  They will not be rushed.  We will start the case and, somehow, we will get it finished.  Five days might have been a generous estimate and, perhaps, three days will suffice.  It may also be the case that we do not take all of that time. 

10. For the above reasons, the mother's application for an adjournment of the final hearing is refused.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  20 August 2007