George & George (No 2)
[2023] FedCFamC1F 1117
•4 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
George & George (No 2) [2023] FedCFamC1F 1117
File number(s): BRC 4444 of 2020 Judgment of: HOWARD J Date of judgment: 4 August 2023 Catchwords: FAMILY LAW – PARENTING – Where the father withdrew his instructions to his lawyers – Where the father then applied for an adjournment of the trial – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 4 August 2023 Place: Brisbane Counsel for the Applicant: Mr Balzamo Solicitor for the Applicant: Browns Lawyers Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 4444 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEORGE
Applicant
AND: MR GEORGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
4 AUGUST 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the application for an adjournment is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 4 August 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting case involving two children - X, born 2012 and Y, both 2015. They are the children of the applicant, Ms George and Mr George. The parents in this case married in 2011. They separated in 2020. The children spent time with both parents for a period of time, but then from July of 2021 these children have not spent any time at all with their mother.
Proceedings in this jurisdiction were filed at or about that time by the mother and the matter progressed through the family law system and came before me for case management last year (2022). An order was made on 28 July 2022 setting this matter down for hearing to commence yesterday, 3 August 2023. Because of the very large number of cases in this Court, it took one year from the date it was set down to come on for hearing. Trial directions were made by the Court on 28 July 2022. Order 16 of those Orders provided that:
16.That each party file and serve on each other party no later than 4.00pm on 13 July 2023:
a. one (1) consolidated Affidavit of evidence in chief of that party;
b. an updated Financial Statement; and
c. one (1) Affidavit of each witness intended to be relied upon at the trial.
Relevantly for the application that is currently before the Court, the father filed an affidavit of 13 July 2023. That affidavit, including the annexures to that affidavit, totals 190 pages. Contrary to the order that was made by the Court in July 2022, the father, not satisfied with the 190 pages of evidence he had put before the Court on 13 July 2023, filed a further affidavit on 25 July 2023. That affidavit comprises with annexures 39 pages. In that affidavit the father included in paragraph 2 the following:
(2)I refer to my affidavit of evidence-in-chief filed in this honourable Court on 13 July 2023. Although that affidavit was prepared by a lawyer, I have had the chance of reading it and considering it further. I realised I should have told the Court several other relevant things and explained myself clearer.
The matter was called on to start yesterday morning, 3 August 2023. The parties asked for some time to have the matter stood down so that they could have settlement negotiations. The Court granted that indulgence to the parties. The matter did not settle. The Court was told by Mr GG, who was then the counsel for the father, that the father had been wanting to confer with his partner, Ms T, but the father had not been able to make any contact with Ms T during the day on 3 August 2023.
The trial did start yesterday afternoon, 3 August 2023. The mother went into the witness box and Mr GG, counsel on behalf of the father commenced cross-examination of the mother. That cross-examination continued this morning. The point that we have reached now is that the father has – to coin the vernacular – sacked his lawyers. He withdrew instructions from the solicitors who were acting for him. The name of that firm is HH Lawyers. HH Lawyers had briefed Mr GG of counsel. From what I can gather from what Mr GG said, once HH Lawyers was sacked by the father, Mr GG also sought leave to withdraw. Both HH Lawyers, and Mr GG sought the Court’s leave to withdraw and I granted that leave.
The father then addressed the Court to seek an adjournment saying, in essence, that there was further evidence that he wanted to put before the Court. He asked the Court to adjourn the case and issue new trial directions because – for several reasons, including that he is now self‑represented. He was self-represented for some period of time prior – though on occasions since the litigation began, he has been represented. The father maintains his trial affidavit was “butchered”, he basically said, by his lawyers. He indicated (waiving his privilege) that he had been given advice not to rely on certain matters.
That seems to be consistent with what he said in paragraph 2 of the affidavit that the father filed on 25 July 2023 - an affidavit which does not include a lawyer’s code on it, but just says it was filed by the father. What is apparent from paragraph 2 of that affidavit, which I have already read into the record, is that the previous affidavit had been prepared by a lawyer, but the second affidavit indicates that it (this particular affidavit) was prepared by the father.
I have considered all of the father’s submissions in relation to why he should get an adjournment. The difficulty is obvious. The matter has been waiting one year for a trial. The Court set aside seven days to hear the parenting case. The father has had more than ample time to put before the Court all of the evidence that he wanted the Court to consider in determining this parenting case.
During cross-examination this morning, Mr GG, obviously acting on instructions, sought to put certain things to the mother in relation to text messages. It transpired that the text messages had not been disclosed by the father to the mother or to anyone else. They were not part of any affidavit that had been read and relied upon in the trial by the father and, as I have indicated, it seems there is not only text messages, but other documents that the father has not disclosed or has not annexed to the affidavits for trial. There is an inherent unfairness to the mother in seeking now to rely upon documents that were not disclosed. As I said earlier when I gave a ruling on certain matters that were the subject of an application regarding certain documents, this Court does not permit trial by ambush. There are processes and procedures that must be followed, documents need to be disclosed to give a party a chance to properly respond.
One of the very great concerns that the Court has is that the children have not seen their mother for two years. If I grant the adjournment – there is no chance that the matter will even get another date this year. So that will add another six months at least before the matter can come back to the Court which seems to me would be six months more that the children will not have seen their mother. That is one of the aspects the Court is taking into account in relation to this application for an adjournment and it is an important aspect.
Another aspect is that there is another case in the jurisdiction which involves the father’s current partner’s family - Ms T. Ms T has two children. They are the subject of family law parenting proceedings before Baumann J. Baumann J has issued a direction that he will not proceed to hear that trial until I have delivered judgment in this case. So that would be another reason that I have at least taken into account in considering this application for an adjournment.
The Court also is required by High Court authority to have regard to the thousands of other litigants who are waiting in line to have their case determined. If an adjournment were granted, other litigants who could have utilised these seven days that we have now, they will have to wait even longer and others will have to wait longer next year. This matter has been set down for a significant period of time.
Now, there is a s 102NA order in place and I indicated to the father before he finally made a decision to withdraw instructions from the solicitors and before he basically sacked his lawyers - I made it clear to the father that he would not be able to personally cross-examine the mother. I read out to the father s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The father asked for leave to be able to cross-examine the mother, but the Court has no power to grant leave. There is a prohibition on cross-examination because of the existence of the s 102NA order. The father was well aware of all this before he proceeded with the decision to sack his lawyers.
The fact of the matter is - taking all of these matters into account, I am not satisfied that there is any proper basis upon which the Court would or should grant the adjournment. I would also add - I have listened to the submissions made by Mr Balzamo, counsel on behalf of the mother, I have listened to the submissions made by Ms Oakley, counsel on behalf of the ICL. To the extent necessary, I rely upon their submissions to form part of these reasons. It seems to me when I balance all these matters that have been brought to my attention that the correct approach is to dismiss the application for an adjournment, stand the matter now down until 2.15pm at which point in time I understand we are going to hear from Ms Z because Ms Z has surgery next week and will not be available.
From what I observed in the Courtroom whilst the father did have his lawyers here, to the extent that those lawyers had been properly briefed, they were doing a competent job on behalf of the father. The fact that the father is unhappy with them is a matter for the father. There has already been a long enough delay because of the number of cases in this jurisdiction. For the reasons stated - the application for an adjournment is dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 4 August 2023
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