FREDERICK & FREDERICK

[2016] FamCA 704

FAMILY COURT OF AUSTRALIA

FREDERICK & FREDERICK [2016] FamCA 704

FAMILY LAW – CHILDREN – Where father seeks trial dates be vacated and the matter adjourned – where there is an investigation of alleged misconduct by officers of the Department of Communities, Child Safety and Disability services – where father is involved in unresolved criminal proceedings against a woman – where the father being charged with indecently dealing with a girl – where father has a history of not engaging in litigation or not complying with directions – where no parent asserts father now presents unacceptable risk of harm.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where father seeks the matter to be adjourned – just resolution of proceedings – where needs of the child and impact of court proceedings – proceedings are to be conducted without undue delay – where father’s application is dismissed. 

Family Law Act 1975 (Cth) s 69ZN

Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175

APPLICANT: Mr Frederick

RESPONDENT: Ms Frederick

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: BRC 3198 of 2007

DATE DELIVERED: 24 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 24 August 2016

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Fynes-Clinton by direct brief

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr Slade Jones

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Dooley Solicitors

Orders

1. The father’s Application in a Case filed 17 August 2016 be dismissed.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frederick & Frederick 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: BRC3198/2007

Mr Frederick

Applicant

And

Ms Frederick

Respondent

REASONS FOR JUDGMENT

1. On 29 June 2016, I made orders listing these proceedings for trial to commence today, and readying that matter for trial, including giving leave to the father to file his trial affidavit material by 29 July 2106.  He did not do so and still has not done so.

2. Pursuant to the liberty to apply contained within those orders, on 10 August 2016 the Trial Management Hearing was brought back before me to consider extending the time for filing of the father’s material, but he did not then appear.  However now by Application in a Case filed 17 August 2016, the father seeks to have the trial dates vacated and the matter adjourned.  The basis for his application is firstly, that there is a current and unresolved investigation into alleged misconduct by officers of the Department of Communities, Child Safety and Disability Services (“the Department”) in 2011, and secondly, that there are current and unresolved criminal proceedings against a woman whose child, in 2011, the father was accused of molesting.

3. Before I consider the father’s application in detail, it is useful to recite some brief background facts.  These proceedings require the court to determine appropriate parenting orders for the parties two children, now 17 and 14 years of age.  They were commenced by the mother in February 2011, in consequence of the father being charged with indecently dealing with a young girl.  That said, earlier proceedings resolved in 2008 on the basis that the children spent five nights with the father, and the balance of the time with the mother.  However the stark fact is that this iteration of the litigation has been on foot for more than five and a half years.

4. Much of the reason for delay lies in a long history of the father not fully engaging in the litigation, or spasmodically disengaging, or not complying with directions to file material so as to ready the matter for trial.

5. In these proceedings, no party asserts that the father now presents an unacceptable risk of harm to either child, nor that his historical charge of indecent dealing – which ultimately did not proceed to hearing – raises any question for the court’s consideration.  Rather the most recent Family Report notes the children’s wishes to spend time with their father at times of their choosing, and in light of the children’s differing current relationships with the father, recommends that such a regime should be ordered.

6. The father has long contended that the charges that were against him in 2011 were the product of some kind of conspiracy between a number of persons, probably including the mother, the mother of the girl in relation to whom he was charged, departmental officers, perhaps one or more of the mother’s lawyers, and perhaps one or more police officers.

7. Against that brief review I turn to the relevant legal principles.  The role of the court in managing the objectives of case management with a just resolution of matters was addressed by the High Court in Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175 at [93] and following, in the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ. At [98] their Honours said this:

   Of course, a just resolution of proceedings remains the paramount purpose of the relevant rule but what is a “just resolution” is to be understood in light of the purposes and objectives stated.  Speed and efficiency, in the sense of minimum of delay and expense, are seen as essential to a just resolution of proceedings.  This should not detract from a proper opportunity being given to the parties to plead their case, but suggests that limits may be placed upon re-pleading when delay and costs are taken into account.  The relevant rule’s reference to the need to minimise cost implies that an order for costs may not always provide sufficient compensation and, therefore, achieve a just resolution.  It cannot, therefore, be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings on payment of costs.

8. Whilst that decision was in the context of specific rules which do not apply in this court, nonetheless there are mandatory statutory principles in relation to the conduct of child-related proceedings in this court. They are contained within s 69ZN of the Family Law Act, and by sub-section (1) of that provision, the court is mandatorily required to give effect to the principles not only in performing duties and exercising powers in relation to child related proceedings, but importantly, by sub-paragraph (b), also in making other decisions about the conduct of child related proceedings.

9. The principles relevant to these proceedings are principles 2 and 5, contained respectively in sub-sections (3) and (7).  They provide:

   The first principle is that the court is 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.

   …

   The fifth principle is if the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

10. In my view, those statutory mandatory principles are relevant to a consideration of this application, accepting that the question of whether to grant an adjournment remains a determination of where the interests of justice lie.

11. As to the first principle, the most recent Family Report set out the writer’s concerns in relation to the effect of this litigation on the children at paragraphs 7.5 and 7.6 as follows:

    7.5 I spoke to [the father] in detail about the need for the court case to come to a conclusion and that I thought his children will continue to be affected by having to tell professionals their views and wishes and to attend further appointments for the court.  I spoke to [the father] about his children’s ages and their level of maturity to understand what they want to occur and to be able to exercise this in the future.  Both girls are achieving high standards at school and are committed to finishing their education and gaining tertiary qualifications.  They are motivated to do well at school and with their extra-curricular activities.

    7.6 [The father] had no insight into the impact the court process has had on his children.  During the interview with me he spoke of the material before the court being untested and yet when we discussed the upcoming hearing and the importance of achieving a resolution to the matter, he again said the hearing would not proceed until the outcome of a departmental investigation was known.  I asked [the father] several times to consider the impact of the court matter continuing on his children particularly given their ages.  [The father’s] response to me was that his children have been through so much already and been harmed, and he didn’t see that delaying the court matter for a little bit longer would matter or affect them more.

12. She had earlier noted at paragraph 5.10 that one of the children had told her “she just wants the process to end so that she can concentrate on her life and her school studies.”

13. As to the fifth principle, in my view five and a half years lapse of time between initiating proceedings and trial is already simply outrageous.  To extend it further would require compelling reasons. 

14. The father does not suggest any likely timeframe for the resolution of either the departmental investigation or the criminal charges.  However even if they could be resolved quickly, it is difficult to see how their outcome either way would be of any moment in these proceedings.  In saying that, I appreciate that the father says that the mother has actively sought to alienate the children against him, but he has long alleged that, and the result of a departmental investigation or the criminal proceedings is unlikely to add any further weight to his allegations.

15. Moreover, even if the mother did actively alienate the children from the father, the reality is that the children’s relationships with him are now established, and inform their respective wishes.  Given their ages, inevitably those wishes will deserve weight.

16. I assess the following factors as being in favour of an adjournment:

    ·Some relevant material may emerge in the course or the departmental investigation or the criminal proceedings;

    ·It might give the father the impression that he has had a fairer trial than he otherwise might think.

17. On the other hand the following factors are against an adjournment:

    ·The matter has been pending for more than five and a half years;

    ·The length of the adjournment is unclear, and could be considerable;

    ·The allegation of alienation has long been advanced by the father and is not new;

    ·It cannot be said that it is more likely than not that any new material will emerge from the departmental investigation or the criminal proceedings;

    ·The father has a considerable history of non-compliance with procedural directions, which has considerably delayed this matter coming on for trial;

    ·Further delay is likely to adversely affect the children and conversely, resolution of this litigation  is likely to advantage them;

    ·Given that this matter is now in my docket, if it were adjourned, my calendar would not permit it to be heard any earlier than 3 April 2017.

18. Weighing those competing matters in the balance tells strongly against any adjournment.  The father’s Application in a Case filed 17 August 2016 will be dismissed.     

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 August 2016.

Associate: 

Date:  24 August 2016