Gibson and Killen

[2016] FamCA 32

FAMILY COURT OF AUSTRALIA

GIBSON & KILLEN [2016] FamCA 32

FAMILY LAW – Parenting proceedings – adjournment application opposed by applicant and Independent Children’s Lawyer – application granted to give respondent opportunity to properly put his case – costs consequences including if not paid by set date.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Gibson

RESPONDENT: Mr Killen

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1112 of 2013

DATE DELIVERED: 25 January 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldsworthy

SOLICITOR FOR THE APPLICANT: Geelong Family Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE APPLICANT: Danielle Webb Lawyer

Orders

1. That the trial to commence this day is vacated.

2. That all outstanding applications are adjourned for final hearing on 11 April 2016 (with an anticipated three days or more duration.

3. That the father pay the costs of the Independent Children’s Lawyer fixed in the sum of $2035 and of the mother fixed in the sum of $3107 by no later than 4.00pm on 18 March 2016.

4. That the mother and the Independent Children’s Lawyer have liberty to apply on short notice if the payments of the costs referred to are not made and with the right to make an application to proceed on an undefended basis.

5. That the father file and serve any affidavit material upon which he intends to rely by no later than 4.00pm on 11 March 2016.

6. That the mother and the Independent Children’s Lawyer have liberty to apply on short notice if the father fails to comply with the filing of the affidavit material by the due date and have the right to seek to have the matter proceed on an undefended basis.

7. That the mother file and serve any affidavit material upon which she intends to rely by 4.00pm on 31 March 2016.

8. That the father forthwith file and serve a Notice of Address for Service.

9. That the matter be listed for mention at 9.00am on 6 April 2016 to assess its readiness for trial.

10. Pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth), the whole of the proceedings shall be subject to the relevant provisions of the Evidence Act 1995 (Cth)

AND THE COURT NOTES:

A.The parties are not permitted to rely upon affidavit material previously filed other than that which was filed specifically for the purposes of the final hearing in either this Court in January 2016 or the Federal Circuit Court in April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibson & Killen 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 MELBOURNE

FILE NUMBER: MLC 1112 of 2013

MS GIBSON

Applicant

And

MR KILLEN

Respondent

REASONS FOR JUDGMENT

1. This is an application by the respondent for an adjournment on the morning of the final trial.  No notice has been given to either the applicant or to the Independent Children’s Lawyer.

2. It is a case that was transferred here by the Federal Circuit Court in 2015 on the basis that it was of some substance and therefore not within their resources.  The respondent has indicated to me that he was not aware of the proceedings having been listed before me in October, which means, effectively, that he did not get either the September orders of the court or those that arose out of the October hearing.  He says the orders were not sent to his address.  That, of course, is entirely his fault, because the Notice of Ceasing to Act of his lawyers indicated that that was the address that the court should use, and indeed, encouraged him to file a notice of address for service, which he has not done.

3. He has indicated today that he spoke to a lawyer prior to Christmas who he has named and conversed again recently.  In both conversations, it appears that the lawyers have indicated to him what will be the nature of the commercial nature with them and he has some funds coming from his parents at the end of February.

4. The adjournment is opposed by the mother  Her case, which seems to be supported largely by the Independent Children’s Lawyer, is that there should be either no or very limited contact between the father and B in the future.  That is a very serious step for a court to take, and one that might be seen to fly in the face of section 60B of the Act.  Notwithstanding that, the overarching principle in Part VII of the Act is that the court must, at all times, consider the protection of the child as the paramount consideration when questions of what parenting orders are made are under consideration.

5. Here, the nub, at least as I can understand it from the father’s perspective, is that the case will revolve around whether or not he caused injury to the child.  He says the mother has somehow concocted and/or conspired with others to create the position where he was accused.  I have endeavoured to find out the consequence of such a finding, but it still seems to me that there is no real litigation plan.  What the father’s position seems to be, from what he has said, is that there would be a counselling arrangement.  The difficulty is that Dr A did not think it appropriate to get the child to spend some time with the father for an observation.

6. Having said all of that, I permitted some cross-examination of the mother’s solicitor about the question of what representation she is providing the mother and how that is being funded, and it would appear that both the mother and the Independent Children’s Lawyer are funded, at this stage, by Victoria Legal Aid.  The dilemma with that is that if the mother is already at the cap, she has to go, if you will pardon the pun, cap in hand, to try and get some further funding.  Whilst that may not necessarily be a major problem if the trial could run on the material before it, it would be a significant impost upon the mother and her lawyers if a new case was to be put to her, as would seem is envisaged by the father.

7. The father last filed material in April 2015 for the Federal Circuit Court, and on any reading of that material, it is very, very skimpy.  I was somewhat taken aback when he indicated that he was happy to rely upon that material.

8. Because of the serious consequences for B of an order on the basis of the way the mother and the Independent Children’s Lawyer are putting the case, it seems to me that I need to give the father one opportunity to at least endeavour to get his house in order.

9. At the same time I cannot allow the costs thrown away to be simply borne by, in this case, Victoria Legal Aid.  In the case of the Independent Children’s Lawyer, there is absolutely no basis upon which the state should pick up the tab, particularly having regard to the fact that the father has done nothing to let anyone know that he wanted an adjournment.  In respect of the mother, my fear, as I have indicated, is that there will be substantial costs required in the foreseeable future if the father runs the sort of case that I anticipate that he seems to be intending.  I see no reason why the mother and/or Victoria Legal Aid should be out of pocket in either respect.

10. Accordingly, I think justice requires that an adjournment be granted, but it will only be until April.

11. That, of course, must be on the condition that the father pays the costs.  To simply say that that issue can wait to another day is inappropriate.  I have no guarantees that it will be paid in circumstances where the father, at least from the bar table, is saying that he intends to pay the lawyers that he proposes to engage, because there are funds available.  On that basis, I propose to make an order that the costs be paid by the father within six weeks, and if they are not, then each party otherwise can have liberty to apply to have the matter proceed on an undefended basis.  I do not propose to make a self-executing order.

12. The mother seeks an order for $3107 costs.  All of those are funds paid by Victoria Legal Aid and, on any view of the current commercial market in the courts, they are well below the scale let alone the commercial rates.  The Independent Children’s Lawyer’s costs are $2035, and both that and the mother’s costs are reasonable in the circumstances.

13. Accordingly, I propose to adjourn the proceedings to April and order that the father pay the costs of the Independent Children’s Lawyer fixed in the sum of $2035 and the mother at $3107.  I will fix the date in the orders as to what date that is to be paid by, and also the provision for liberty to apply if they are not paid.

RECORDED:  NOT TRANSCRIBED

1. In my view, this is case where, because of the consequences of a finding one way or the other as to what happened to B, each party needs to take stock of what exactly they are putting before the court.  I think this is a case where the exceptional circumstances can be seen, and for the purposes of section 69ZT, the rules of evidence should apply.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 January 2016.

Associate: 

Date:  1 February 2016