Gale and Din

[2020] FamCA 836

FAMILY COURT OF AUSTRALIA

GALE & DIN [2020] FamCA 836

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – where the Applicant seeks an adjournment of the trial – where the Respondent opposes the adjournment – application refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Gale

RESPONDENT: Mr Din

INDEPENDENT CHILDREN’S LAWYER: Northside Family Law Centre

FILE NUMBER: LEC 93 of 2019

DATE DELIVERED: 18 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 18 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Miller, Jensens Solicitors & Attorneys

COUNSEL FOR THE RESPONDENT: Mr Gunn of Counsel

SOLICITOR FOR THE RESPONDENT: Queensland Legal Practice

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kalimnios of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Northside Family Law Centre

Orders

IT IS ORDERED THAT

1. The Applicant’s Application in a Case filed 18 September 2020 seeking an adjournment of the final hearing of this matter, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 93 of 2019

Ms Gale

Applicant

And

Mr Din

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in a Case brought to the Court’s attention at about lunchtime on 18 September 2020, the mother’s legal representative applies for an adjournment of the trial listed to commence on Monday, 21 September 2020 and proceed for four days. 

2. The bases relied upon to support that Application are as outlined in the affidavit affirmed by Ms Miller on 18 September 2020. 

3. Insofar as that affidavit is concerned, the contents of paragraph 15 appear to me to evidence the mother’s solicitor going into evidence and expressing an opinion in relation to the father’s filing of an Amended Application to seek, by way of final order, that the child live with him.  I do not intend to take into account the contents of paragraph 15 I consider it unfortunate that the mother’s solicitor has chosen to express an opinion and, thus, arguably, place herself at risk of being regarded as a witness in her client’s case.  However, given that I do not intend to take the contents of the same into account, that does not seem to me to prevent me from continuing to dispose of the Application for an adjournment of the hearing today.

4. One of the reasons relied upon to found the Application is as outlined in paragraph 6 of Ms Miller’s affidavit – namely, that information was received by her from a Mr Q from the Queensland Health Directions Unit on 17 September 2020 to advise that there were no grounds for an exemption to issue for either Ms Miller or Mr Smart to travel from New South Wales to Queensland for the purpose of them undertaking the representation of the mother.

5. Despite the affidavit being absent any further detail, Ms Miller informed me that: the application for exemption was made on 8 September 2020; prior to 5 September 2020 it was at least her understanding that she could obtain a border pass which would enable her to drive from New South Wales into Queensland after providing certain required undertakings; and her understanding was that things changed thereafter on 5 September 2020.

6. The application for an exemption was then made on 8 September 2020. 

7. Ms Miller also advised, in answer to my questions of her, that she had made follow up inquiries to the hotline in an attempt to ascertain the state, or status perhaps, of the application for exemption, and that such contact occurred on 10 September 2020, 14 September 2020 and 17 September 2020 – she left her name and contact details on that occasion.  As I understood the information Ms Miller also provided to the Court, it was to the effect that she had been informed by Mr Q that neither she nor Mr Smart were able to obtain an exemption but, if they were mentioned in an order as being persons required to appear in person in Brisbane at the Brisbane Registry of the Court, they would be permitted to cross the border with the benefit of an exemption so as to be able to attend at the trial which, since an order was made on 2 April 2020, has been listed for a final hearing by way of in-person hearing. 

8. I have already made the order that both Mr Smart and Ms Miller are required to attend at the Court by 9.00 am on 21 September 2020.  I retain hope, therefore, that, with the benefit of that order, their appearance in person will be able to be facilitated. 

9. Given the making of the order, I am not persuaded on that basis then to adjourn the hearing which was listed for final hearing on 2 April 2020: particularly noting again – and I emphasise – that the order made that  day included that it occur by way of in-person hearing.

10. It is perhaps trite (although, perhaps, also necessary) to record that it is a matter for legal representatives to take all steps at all appropriate times to ensure that, if they continue to hold the instructions of a particular client, they are able to be present to discharge their obligations in accordance with the listing of a matter by the Court.  I consider that the COVID-19 pandemic circumstances, whilst certainly adding additional difficulty to legal representatives in managing the practicalities of the discharge of that obligation, to not obviate the same. 

11. The second basis on which it is submitted I should make an order adjourning the final hearing is the fact of a change in position of the father vis-à-vis the final orders sought. 

12. It is clear, from regard to the Court record, that until the Amended Application was sealed in the Court at 10.18 am on 17 September 2020, the father’s position has been to seek orders that the child live with her mother and spend time with him.  Until that time, he also sought that orders be made for equal shared parental responsibility. 

13. That position changed.  As outlined in the Amended Initiating Application filed 17 September 2020, the father now seeks an order for sole parental responsibility and, amongst other things, an order that the child live with him and, at least initially, spend supervised time with the mother. 

14. In other circumstances I would regard that to be such a significant change of position so close to the eve of trial as to persuade that an adjournment of a final hearing is necessary; however, in the circumstances of this case I am not so persuaded.

15. I arrive at that decision for the following reasons. 

16. I consider that there is already filed, by each of these parents, significant affidavit material – not only by themselves, but by a large number of witnesses upon whom they seek to rely in each case – which contains evidence that goes directly to the issue of parental capacity.  Secondly, the age of the child is such that it seems to me that Ms R, who prepared the most recent Family Report (exhibited to an affidavit filed 14 September 2020 – the report itself being dated 16 April 2020 and deriving from interviews which occurred of 16 March 2020) in the matter is likely to be able to deal with the change of position advanced by the father, provided that she is today provided with a copy of the Amended Application so that she can have time to consider whether such application would cause her to change any of the opinions proffered in the report.

17. It is also relevant, I consider, to note that, at paragraph 6.46 of Ms R’s report, she outlined the father’s then position vis-à-vis parenting regime and noted as follows:

    Ideally, he wanted to have increasing amounts of time with his daughter, unsupervised, and to gradually extend this practice over the following years so that, by around school age, Z was able to stay with her parents on a week-about basis.

18. Whilst an order for immediate change of primary care is, of course, different to an order or orders that would put into effect increasing periods of time between the father and his daughter until the same reached a position of equal time, it seems to me that the mother and her legal representatives were, clearly, on notice, from no later than the release of Ms R’s report, that the father’s position would, at the very least, involve the possibility of him seeking orders leading to an equal-time shared parenting regime.

19. I am not persuaded, given the age of the child (being three) that there is a requirement for Ms R to undertake further interview of her.  It could not, sensibly, be advanced that, at her age, any comments or wishes could be regarded, in the true sense, of being a wish about her future parenting regime. 

20. I am also well satisfied, given my preparations to date and the fact of working through the affidavits listed by each of the parties as those they intend to rely upon, that the Court has already been provided with a significant amount of evidence that touches upon the relevant s 60CC considerations and from which submissions can be made in relation to the same.

21. For those Reasons then, I decline at this stage to make an order adjourning the trial. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 September 2020.

Associate: 

Date:              18 September 2020