Grant and Aiden (No 8)

[2016] FamCA 655

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO 8) [2016] FamCA 655

FAMILY LAW – Adjournment of the concluding part of a contravention application where mother found to have breached – Submissions had already been heard – no utility – application refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 29 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

1. That the application for an adjournment is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No 8) 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 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

REASONS FOR JUDGMENT

1. This is an application for an adjournment by Ms Aiden.  The purpose of today’s hearing is and has always been to conclude the outcome of a contested contravention application.  The Court record will speak for itself as to the endeavours that the Court has made to get to this concluded state.  It is the return date of the hearing for the purposes of taking the evidence of a family consultant, who was requested by the Court to examine the best interests of V (the child) in the event that an order was made for compensatory time.  I do not propose to regurgitate all of the reasons, which I hope are comprehensively set out in the reasons for judgment that I delivered in March.  On that occasion, I adjourned the proceedings to have this issue examined.  The mother’s application for the adjournment is on two bases:  (1) that she has not been accorded procedural fairness, and (2) is the fact that she wants to get legal representation. 

2. In respect of the latter, it is perplexing that she would seek legal representation at this point in the proceedings.  The Court’s function in respect of these proceedings is effectively make orders, one way or the other.  The legal representative would have a very limited role therefore in relation to that.  There is no application before me to reopen for the purposes of new evidence, nor could there be, in reality, having regard to the findings that I made last month.  It is often said in this country that legal representation is a privilege and not a right, but here has been no indication in the past, notwithstanding the very serious nature of these proceedings, that the mother has made any effort to have legal representation.  In my view, this is not a case where legal representation could assist either the mother or the Court. 

3. The former ground relates to procedural fairness.  Much of the submission revolves around the question of service of documents, including orders.  There is a complaint that the independent children’s lawyer did not provide a notice for address for service.  There is a complaint therefore, and probably as a consequence, that the mother did not have sufficient time to provide documents to the independent children’s lawyer.  But the reality is that the independent children’s lawyer took it upon herself to search the Court file, and to the extent that any information was to be provided to the independent children’s lawyer, it was presumably already on the file.  There were a number of documents filed by the mother, including a substantial affidavit with annexures, all of which she did not prosecute on the last occasion and were struck out, but, no doubt, the independent children’s lawyer had the opportunity to examine those.  It is hard therefore to see how she has been prejudiced by the lack of provision of what she wants to the independent children’s lawyer.

4. Paragraph 20 of the orders that I made on 22 April provide for an opportunity for any party to apply to revoke the order that I made under section 68P, subsection (2) of the Act.  There are two parts to that.  The first is that to set it aside would be pointless, when the recovery order, which it was intended to be aligned with, has now been executed.  The second point is that, to the extent that there may be a need for that order to override a State family violence order for any future proceedings, there is now ample time for the mother to make that application.  So, to that extent, paragraph 20 of the orders does not prejudice her in any way.

5. She complains that she has not been given sufficient time to deal with other matters, because she did not get the various orders.  It is very hard to have much sympathy for someone who is well aware of what these proceedings were about, but who has failed to participate in the proceedings.  Indeed, I made orders that she be in Melbourne personally.  I made orders that she return the child to the school in Melbourne.  None of those orders have been complied with.  For her to now say that she wants the Court to bend over and provide her with all of this information, so that she can then respond, is a little bit cheeky. 

6. In my view, there is absolutely no basis for a suggestion that she has not been provided procedural fairness.  Part of the procedural fairness argument has been that she was not able, because she was not skilled enough, to cross-examine the family consultant.  The information that the family consultant has provided could hardly be cross-examined upon in any event, because the mother was not present during the observations by the family consultant.  More importantly, to the extent that there was any explanation for what the family consultant saw, the mother has had the child in her exclusive care for months, because the contravention proceedings were all about the father not having his time, which has not occurred since last August.  It is hard to understand how she would not have known what the basis was behind the child’s reactions, as observed by the family consultant.  On that basis, skill had nothing to do with it.  The mother has not been represented in proceedings for some years, including two prior contravention applications, and, before me, she had no hesitation in cross-examining the father. 

7. On that basis, she has been accorded procedural fairness and has, effectively, done nothing to assist the Court in determining this matter.  On that basis, the application for the adjournment is refused.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 April 2016.

Associate: 

Date:  5 May 2016