Gifford & Savea (No 2)
[2024] FedCFamC1F 435
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gifford & Savea (No 2) [2024] FedCFamC1F 435
File number(s): PAC 3784 of 2019 Judgment of: RIETHMULLER J Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – OBLIGATIONS OF SOLICITORS IN CONTEXT OF S 102NA ORDERS – Application to adjourn final hearing – Where the mother’s legal representation ceased acting long before trial – Where s 102NA applies – Where the mother failed to apply for representation under the cross-examination scheme – Where mother took steps to seek representation – The father failed to file material on time – Serious allegations by mother – Whether solicitors should pay costs of adjournment – Whether father’s solicitors should be restrained from charging costs – Trial adjourned. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 31 May 2024 Place: Parramatta Counsel for the Applicant: Litigant in person Solicitor for the Respondent: Rafton Family Lawyers Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 3784 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAVEA
Applicant
AND: MR GIFFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
1.The final hearing listed for Monday, 3 June 2024, be adjourned to a date to be fixed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Gifford & Savea has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
This is an application by the mother for an adjournment of a four-day parenting trial that was listed to start on Monday morning (today being Friday).
The parties have one child who is six years of age. He was born during a brief relationship between the parties, who separated in 2018. By August 2019, proceedings had been issued in the court concerning his care arrangements. On 14 July 2021, consent orders were made for him to live with the father, for the father to have sole parental responsibility for matters relating to education and health, and for the mother to spend time with him on a regular basis.
In early 2022, the mother withheld the child from the father and alleged that there were risks to the child, including a risk of sexual abuse. She also sought an apprehended domestic violence order.
The matter came before Christie J on 12 May 2022, when her Honour, after reviewing the material then available, ordered that the child be recovered to the care of the father and made orders for the mother's time with the child to be supervised. The mother's time with the child has been supervised since then.
In February 2024, the mother had applied for a grant of legal aid. This application for legal aid was refused on the 12 February 2024.
The matter first came before me on 15 March 2024 for a case management hearing, as a family report was then available and the matter could be listed for trial. This was the 23rd occasion on which court orders had been made in this case since the parties had separated. Given the serious issues in the matter (there were claims about significant risks of abuse to the child) and that the child's mother was only permitted supervised time at this point, it was a case that called out for an early date, if that was possible. Arrangements were made to have the case listed for trial on Monday, 3 June 2024.
At that directions hearing, the mother sought orders pursuant to s 102NA of the Family Law Act 1975 (Cth) due to allegations about the psychological impact of the father's conduct and the nature of the allegations at issue. However, this would also leave her in a position where, without a lawyer to be able to undertake the cross-examination of the father, she would not be able to effectively cross-examine. There was clearly a long history of significant difficulties and allegations between the parties. An order was made pursuant to s 102NA that:
The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 3 June 2024.
Significantly, there were also Notations made to the orders on that day, noting that:
A.In the event that allegations of family violence engage the provisions of s 102NA of the Family Law Act 1975 (Cth), it is noted that:
(a)An unrepresented party will not be permitted to personally cross-examine the other party/parties;
(b)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation, but any such application must be made at least 12 weeks prior to the final hearing;
(c)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet;
(d)If s102NA is engaged after trial directions have been made, that party is required to immediately notify the Court AND it is the responsibility of each party to arrange their own legal representation or apply to the Scheme; and
(e)In the event a party fails to arrange legal representation in circumstances where s 102NA prohibits them from personally cross-examining another party, the trial would ordinarily proceed without the opportunity to personally cross-examine, subject to any orders made by the trial judge.
In this case, as has been my practice, given the difficulties that the operation of s 102NA has caused in its practical implementation, I also made oral comments from the bench to the parties directly to highlight to them some of the practical issues that arise, including stating:
The parties should bear in mind that if there is any question about them having legal representatives at trial, they should make an application immediately under the s 102NA [scheme] at Legal Aid, even if they don't choose to take up the aid that might be granted under the scheme. You have to make application for it usually three months in advance, and certainly no later than six weeks in advance of the trial.
On 5 April 2024, the mother's solicitors ceased acting for her. When ceasing to act, they sent her a letter, the relevant parts of which have been placed before me as to the information given to her at that point by her solicitors, which includes a brief paragraph setting out that:
For the final hearing of this matter, s 102NA applies, and that means that you [referring to the mother] cannot directly cross-examine the other party, but a lawyer or barrister can on your behalf... you may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for representation.
The letter did not enclose the relevant application form, nor did it provide the mother with either an email address, phone number or website address to assist her to know how to go about making such an application.
The mother proceeded to attempt to obtain a pro bono lawyer by making an application through the scheme operated by the Law Society of NSW. That application was made by her on 17 April 2024. Not having heard back in a few days, she followed up on 24 April 2024 with the Law Society, who provided her with a pro bono nomination on 29 April 2024. The mother attended upon that lawyer and was told that she should apply under the s 102NA scheme. The mother is unable to recall whether the pro bono lawyer was given a copy of the directions that I made which contains the s 102NA order. It is not clear exactly when she attended upon the pro bono lawyer, however it is likely to have been in the first fortnight in May, a time after which it was probably unrealistic to expect that Legal Aid NSW would find the mother a counsel to act at the trial, although perhaps that may have been possible at that point.
The Independent Children’s Lawyer then wrote to the mother on 23 May 2024, helpfully enclosing the relevant form for applying for funding under the relevant scheme for s 102NA, which the mother lodged five days later on 28 May 2024, three days before this directions hearing. It is unrealistic to contemplate that Legal Aid NSW would have been able to nominate a lawyer to act in a trial starting on Monday, 3 June on a form filed on 28 May, even if the urgency was specifically drawn to the attention of the manager of the relevant section of Legal Aid NSW.
On 29 May, the day before yesterday, the mother electronically filed a brief affidavit seeking an adjournment of the matter.
Upon becoming aware of the mother’s affidavit, the court of its own motion yesterday listed the matter for a Directions Hearing today for me to consider what was taken to be an adjournment application (because no formal application was made) as it was simply apparent from the mother's affidavit that an adjournment was what she was seeking.
The matter then came before me this morning. It has taken some time, as the mother remained unrepresented, for her to properly put her case, as she needed to locate from her email server various documents to show what steps she had taken in the matter and to enable her to get some advice from the duty lawyer, who helpfully redacted parts of the letter from her previous lawyer that did not relate to these procedural issues which would have not been relevant matters for the potential trial judge to have seen.
The question arises as to what should be done about the trial in the situation that has unfolded.
I accept that the mother is not a well-educated person, and certainly has no real understanding of the administrative complexities of the operation of the funding scheme supporting the operation of section 102NA, either at law from reading the Family Law Act, or in terms of the implementation of the funding arrangements, or how to access that funding.
It was not apparent, on the letter from her solicitors, as to what exactly she ought to do to access that scheme. She was simply told the name of the scheme in the letter, and nothing more.
I also note that when one turns to the Legal Aid NSW website and searches the term "102NA" the website shows that there are no results. Similarly, if one searches using the search term "Commonwealth Family Violence and Cross-Examination of Parties" it again shows no results. It is difficult to conclude that the mother ought to have been pressed to do more than that, given the information that she had, either in the Court orders, or the letter from her then solicitors.
If one searches on the Legal Aid NSW website for the term "family violence", the tenth entry that arises appears to have a connection because it uses the term "cross-examination of party scheme", although it does not specifically include the words "family violence" in its heading. Clicking through to that page shows a family violence and cross-examination of parties page, which appears to be an old expression of interest request for lawyers to join the panel for the operation of the scheme. However, for the astute lawyer, at the very bottom, under the heading ‘Resources’, one can at least access the application form.
When considering these matters, it is difficult for me to be critical of the mother in the steps that she has taken, or more importantly, not taken in this case, given her background and circumstances. It is reasonable, however, to be critical of her for not having telephoned Legal Aid NSW. Once it was realised by the Independent Children’s Lawyer (albeit far too late) he immediately took steps to send her the relevant forms which contained information about how to go about accessing the scheme, as the form at least contains telephone numbers and references to Legal Aid NSW. It seems to me that the mother's former lawyer (at least prima facie, given that I have not heard from her former lawyer) has failed to ensure that she has an appropriate level of information to make it reasonable to expect her to have contacted Legal Aid NSW, to apply for the funding under the scheme. The letter ought to have included the forms and contact details for Legal Aid NSW.
The difficulties with the case, however, do not end there. The directions required the parties to file their trial material, court books of the material that they relied upon for trial, and their written outlines of case, all by specific dates. Despite these directions, the father has not filed a trial affidavit, in circumstances where the last affidavit he has filed in this matter is now two years old, leaving a lacuna in the evidence of such enormity that it is difficult to see how a court could proceed on the old affidavit alone. No court book has been filed containing the material upon which he intends to rely, and no outline has been filed. It is now Friday and the trial is listed to commence on Monday. At best, the mother may have an electronic copy of these documents from the father sometime later today but more likely on Monday.
The Independent Children’s Lawyer has also not filed an outline, although in light of the fact that no material has been filed by either of the parties and, in effect, the only trial material of relevance is the family report that sets out specific recommendations, it seems there would be little more contained in the Independent Children’s Lawyer’s outline than the recommendations of the family report writer.
What then is to be done in the situation that confronts the Court, with a case that has, in one form or another, been pending before the courts for years now, has had an enormous number of court events, has had four days set aside for the hearing of the matter, and in which the parties have conducted themselves in such a way as to leave so little material before the Court?
I have real concerns about the serious nature of the allegations (made by the mother relating to the safety of the child in the father’s care). Whilst those allegations have not had sufficient evidentiary basis to result in anything other than supervised time to the mother, they are, nonetheless, serious allegations. The existing orders for supervised time indicate the very real possibility that the allegations themselves may not be well-founded, and might indicate a risk of psychological abuse to the child if the mother has a fixation about allegations that are not well-founded, hence the orders for supervision of time. A serious issue might arise as to whether or not supervision is required on an ongoing basis, to protect the child from either fixated erroneous views or the dispute between the parties.
If I were to simply strike the matter out, the current interim orders would lapse, and the existing final orders from 2019 would resume effect, which provide for unsupervised time for the mother. On the material before the Court, that does not appear to be, prima facie, in the child's best interests, and weighs heavily against simply striking out the proceedings, despite the failures to comply with directions.
I take into account that it does not appear that the mother has been particularly diligent in applying under the scheme, but when taken as a whole, and in light of her background and understandings and lack of specific advice, it is difficult to draw strong adverse inferences against her.
I also take into account that if I do not strike out, but adjourn the matter, it is the mother who will be most prejudiced because at this stage, supervised time will be continuing, rather than unsupervised time. The father will suffer the prejudice of delay, although I note that he is in receipt of a grant of legal aid, and his contribution to legal aid has been very minor and do not appear to be ongoing. I also bear in mind that, in effect, the case is unable to proceed on Monday, even if it were to proceed on an undefended basis, because the father has not filed material outlining anything that has occurred in the last two years, nor could I direct that it proceed on oral evidence, given that the mother is unrepresented, that such direction would be so close to trial, and that the mother does not have a grant of aid for somebody to cross-examine the father, in a case where it is alleged that there are potential sexual abuse issues which almost necessarily will require a proper cross-examination of the father, if they are to be pursued.
It does not seem to me that there is any real excuse for the late filing or non-filing, as it turns out, of the father's material in this case if he wished to preserve the trial date. At the very least, the father should have made an application to the court to vary the directions for filing when the mother failed to file material, which was meant to be filed some weeks before the father's material to ensure that he was in a position to provide an affidavit that squarely answered the allegations that she wished to pursue at trial.
The Independent Children’s Lawyer could have acted sooner, although I accept the Independent Children’s Lawyer’s submission that the history of the matter has shown that the mother has never been unrepresented, and that he expected she would have representation, hence leading to the delayed intervention by the Independent Children’s Lawyer in this matter.
In the circumstances, it appears to me that the conduct of the parties has left me with no choice but to adjourn the trial of the matter. As I do not have dates available this year due to other listings of trials it will have to be adjourned to a date to be fixed.
The conduct of the practitioners and parties in this case is a matter of great concern, in failing to take any proactive steps, such as:
(a)the mother's solicitors failing to provide her with the relevant forms to apply under the funding scheme or, at the very least, the phone number or contact details of who she must contact under the scheme; and
(b)the father’s solicitor’s failure to file his material or seek a variation of the directions which has resulted in the case being unable to proceed and has wasted four hearing dates, when there are a large number of cases where all of the families involved in those cases are anxiously waiting dates to come before the Court.
The effect is, of course, to frustrate the overarching purposes set out in s 67(1) and (2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’), which are in the following terms:
Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
It is significant that the parties' solicitors also appear to have failed to fulfil their obligations under s 68(2) of the FCFCOA Act, which provides:
Parties to act consistently with the overarching purpose
…
(2) A party's lawyer must, in the conduct of a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) (including negotiations for settlement) on the party's behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
This section needs to be read in light of s 68(1), which provides:
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
I have considered whether or not to make orders requiring the solicitors for the mother to show cause why they should not be required to pay the costs involved in the adjournment of the matter, which is available under s 68(5) of FCFCOA Act, which provides:
(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 1) or a Judge may order a party's lawyer to bear costs personally.
I have also contemplated whether or not I should make orders restraining the father's solicitors from charging fees, in circumstances where a more proactive approach may well have avoided the trial being adjourned.
I note that the father's solicitors were in an awkward position as the mother's material was not filed, which gave rise to some uncertainty. However, it would have been apparent that either they needed to file their material strictly on time in order to proceed with the matter against an unrepresented litigant or bring the matter back before the court for directions. A similar argument arises with respect to the Independent Children’s Lawyer and whether he ought to have acted more proactively.
Ultimately, given the various matters that have arisen and the interplay between all involved, I am not persuaded that it would be appropriate to make any particular costs orders or injunctions in this particular case, which, to use a word most recently used by Lee J, appears to have been in omnishambles between the date when I made directions and today.
I will adjourn the matter to a date to be fixed. Once there are trial dates available, further directions will be made.
I should also point out that in light of these reasons, solicitors should now be clearly on notice that they may be subject to personal costs orders or costs injunctions if they fail to act proactively in cases where the operation of the s 102NA scheme may result in cases being adjourned. Solicitors (when they are ceasing to act in such a matter) should at least:
(a)write to their clients advising of the scheme, including contact details of the relevant body administering the scheme in the state in which the case is pending, and given the electronic nature of forms, enclose a copy of the relevant form for the litigant;
(b)notify the court and the other parties when ceasing to act if s 102NA applies, as clearly such a situation raises a real risk of frustrating the efficient running of the court; and
Where a solicitor ceases to act the other parties’ solicitors ought to apply for variations of directions where it appears that it is either no longer possible or no longer appropriate to comply with directions that have been made for trial. Simply failing to comply with directions is not an acceptable course.
The fact that orders for costs or costs injunctions have not been made in this particular case should not be taken as an indication that such orders will not be made in the future in similar circumstances.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 31 May 2024
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