Gibbs and Gibbs

[2016] FCCA 2192

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBBS & GIBBS [2016] FCCA 2192

Catchwords:
FAMILY LAW – Mother’s oral application for an adjournment of trial in situation where the mother has failed to provide time for children with the father and where the mother had not filed responsive material in proceedings commenced more than 3 years ago – application refused.

Legislation:

Family Law Act 1975

Applicant: MR GIBBS

Respondent: MS GIBBS

File Number: LNC 239 of 2013

Judgment of: Judge McGuire

Hearing date: 10 August 2016

Date of Last Submission: 10 August 2016

Delivered at: Launceston

Delivered on: 10 August 2016

REPRESENTATION

Counsel for the Applicant: Mr P Briffa

Solicitors for the Applicant: Legal Aid Commission of Tasmania

The Respondent appeared in person:

Counsel for the Independent

Children’s Lawyer

Mr R Murray

Solicitors for the Independent Children’s Lawyer

Murray & Associates

ORDERS

1. That the oral application for an adjournment is dismissed.

2. That a copy of these reasons be transcribed, settled and placed on the Court file.

IT IS NOTED that publication of this judgment under the pseudonym Gibbs & Gibbs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 239 of 2013

MR GIBBS

Applicant

And

MS GIBBS

Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

1. This matter is listed for trial today in respect of two children of the parties.  At the calling on of the matter for trial and after noting that the respondent mother appears in person and after explaining the procedure of the trial to the mother, she has made an oral application for an adjournment.  It seems that she did so without prior notice to counsel, the solicitors for the father or the independent children’s lawyer but in any event I have heard that application.

2. The application is based on – to paraphrase the mother – that she wishes to obtain legal assistance for herself and the children.  The first comment I have in respect of that is that the children are already represented by the appointment of an independent children’s lawyer, Mr Murray, who in fact – and I am about to recite the history of this matter – urged me at the last mention of the matter to bring it on to trial for the benefit of the children’s interest being aired in a court.  The application is opposed by both the applicant and the independent children’s lawyer.

3. It is, of course, preferable, advisable and of assistance to the Court and, in my view, to all parties to proceedings that a party have the benefit of legal advice, legal assistance and representation at a trial of issues that are often complex and foreign to lay persons but involve, ultimately, arguably the most important of issues, being the welfare, living arrangements and parenting arrangements for dependant children.  That is a general proposition but it must be seen on a case-to-case basis.

4. In the matter now before me, I should say that my first interaction with this file occurred only in its last mention but on that occasion I was urged to list the matter for trial by the independent children’s lawyer against the then-opposition of the mother.  The chronology is this:  that the father’s application for children’s orders was filed as long ago as 14 May 2013.  That is in excess of three years.  To put that into context, it is the aim of this Court to – certainly, when it was established – to give parties to litigation trials and conclusions in their matters in some nine to 12 months after the filing of proceedings.  This matter is now well in excess of three years in its duration.

5. That timeline is compounded by the fact that, on my count, this matter has had no less than 27 court events.  To say that I am a little concerned as to that situation is an understatement in the extreme.  Also, the file cover discloses – and I do not think this is disputed – that despite 27 court events, a matter being commenced on 14 May 2013, the mother did not file a response or any affidavit material until my orders of a matter of weeks ago when the matter first came before me.

6. That situation is further compounded in its concerns in that the issue before me involves the living arrangements for these children against a background that they have no ongoing relationship with their father.  The children live with their mother.  The only direct contact, I am told, subject to the evidence being given and adduced, is one visit in October 2015, almost 12 months ago and some ongoing telephone contact.  The only material on the file that I have read at this stage involves an expert psychologist who of more concern uses the word “alienation” in her correspondence.

7. I am also told and I accept, that the mother who makes an application today for an adjournment to seek legal advice does so against a background where she has provided instructions to no less than three firms of solicitors and the most recent being in the last week to assist her to prepare the only affidavit on the file from her to date.  I can only speculate as to the reasons for the breakdowns between solicitors and Ms Gibbs but it would be very doubtful that all three firms of solicitors would suffer under some conflict of interest in a matter such as this and in any event, I am well aware that the general locality of Northern Tasmania – or Tasmania, generally – has numerous solicitors who specialise in family law matters.

8. So, against a background of a situation where I am mindful of the desirability of parties to be represented, the assistance that can come to them being represented in litigation and the application that is before me by Ms Gibbs, I must consider the context of this situation.  This matter has been going for over three years.  The mother has had the assistance of solicitors and this is a situation where the children’s best interests have assumed some urgency, at least in respect of their proposed relationship with their father or the proposals of the mother which involve the placing of conditions on that relationship.

9. In all of those circumstances and on balance, I am not inclined to grant the application for an adjournment.  The oral application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date: 29 August 2016