Harlow and Astin (No 2)

[2009] FamCA 950

FAMILY COURT OF AUSTRALIA

HARLOW & ASTIN (NO. 2)

[2009] FamCA 950

FAMILY LAW – PRACTICE AND PROCEDURE – Request for the appointment of an Independent Children’s Lawyer – Benefit of an ICL previously considered – Necessity of further involving the Child in the proceedings – Late application without supporting material – Likelihood of Legal Aid cap of funding – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of trial by the Mother – Adjourn to enable the appointment of an Independent Children’s Lawyer – Application dismissed

APPLICANT:   

Mr Harlow

RESPONDENT:    Ms Astin

FILE NUMBER: BRC 5262 of 2008

DATE DELIVERED: 20 August 2009

PLACE DELIVERED:    Brisbane

PLACE HEARD:    Brisbane

JUDGMENT OF:    Barry J

HEARING DATE:    20 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Waller, Solicitor of Carne Reidy Herd, Solicitors appeared for the Applicant Father

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appeared in person

Orders

IT IS ORDERED THAT:

1. The Mother’s oral application for the appointment of an Independent Children’s Lawyer is dismissed.

2. The Mother’s oral application for adjournment of the trial listed to proceed for two days commencing 27 August 2009 is dismissed.

3. The Mother is to file and serve by 4.00 pm on 25 August 2009 a document specifying what orders she is seeking.  If the orders she is seeking are in the same terms as her Application in Form 2 which was filed on 27 March 2009 a letter to the Father’s solicitors to that effect will be sufficient compliance with this Order.

4. The Mother is to file and serve by 4.00 pm on 25 August 2009 a list of witnesses she will be calling at the trial of this matter.

5. Leave given to the Father’s legal representatives to file an application returnable by 10.00 am on 26 August 2009 for both Ms K and Mr Y to appear by telephone to give evidence at the trial of this matter.  If the Mother opposes this application the matter is to be listed to 10.00 am on 26 August 2009 at the Brisbane Registry of the Family Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 5262 of 2008

MR HARLOW

Applicant

And

MS ASTIN

Respondent

REASONS FOR JUDGMENT

1. This matter proceeded to trial in June 2006 in relation to what orders should be made for the future care of the child, who was born in March of 1998.  The court was assisted at that time by the appointment of an independent children’s lawyer, a very experienced independent children’s lawyer, Jennifer McArdle, and she had briefed counsel, Mr Drysdale.  On my recollection on the second day of the trial consent orders were entered into which provided the child was to live primarily with the father and the mother was to have contact as stipulated in those orders.

2. In July 2008 the father filed an application seeking on an ex-parte basis to suspend all time between the child and the mother based on certain recent incidents.  I acceded to that application and adjourned the matter.  The matter has continued in my docket since that time.  I have not treated the litigation as part of the less adversarial trial process, although the application for final orders was filed after the amendments to the legislation.

3. On 19 February this year, I listed this matter for trial and the trial is set for 27 and 28 August, which obviously enough is Thursday and Friday next week, that is, today week.  The mother now applies to the court for an adjournment of that trial by virtue of the fact she seeks the appointment of an independent children’s lawyer.

4. The trial directions that I issued were that the mother was to file material why she should be at liberty to re-open the issue with whom the child should live, and the father was to respond to that by 27 June, and then the father was to file his material relating to his application to suspend all time between mother and child, and the mother was to respond to that thereafter by 27 June. 

5. I have not gone into the material in great depth, but the mother has filed material by herself, and she has filed a detailed report from a Reverend U, who is a clergyman, counsellor, with LC Organisation, and also a Dr A, a consulting clinical psychologist.  If the evidence filed on behalf of the mother is accepted, there are certainly real issues to be determined in this matter.  In any event, I would comment that having regard to the nature of the orders sought by the husband, it is fundamental that the parties be heard.  The court views any order suspending all time between a parent and a child as being a grave issue indeed.

6. My concerns about the mother’s oral application made on today’s date is that it is made in the following circumstances - that the matter has been set down for trial since February.  The mother had had legal representation, and it is not until a week before the trial that she suddenly says the court would be assisted and it is in the child’s interests for there to be an independent children’s lawyer.  I can indicate that while the matter has proceeded in my docket over the numerous court attendances this matter has had, I have well and truly considered whether the court would be assisted by the appointment of an independent children’s lawyer.

7. The view that I have formed is that the issues to be determined, I would be unlikely to be assisted by the appointment of an independent children’s lawyer. The matter goes further than that because to adjourn the trial and to order the appointment of an independent children’s lawyer, it is a necessary consequence that this young child would once again be interviewed by the independent children’s lawyer and become more actively involved in the court process.  I will endeavour to avoid that at all costs.  Children should be spared the difficulties inherent in being involved in the litigation process.

8. The mother had legal representation in this matter from Mr Frank Carroll’s office, Ms Elizabeth Fairbairn, and they were engaged on 4 June this year up until earlier this week, at which time the mother withdrew the instructions from the firm.  I take into account that the application for the appointment of an independent children’s lawyer is made, in my view, far too late.  It is made without any supporting material.  It is made at a time when the matter is in all respects ready for trial.  It is made in circumstances where there is no guarantee that notwithstanding an order in those terms, that legal aid would actually fund the appointment of an independent children’s lawyer.  Normally there is a cap on these matters.  There was an independent children’s lawyer previously, and it is not uncommon for the legal aid office to take the attitude, “We are not going to fund it again.” 

9. There are numerous reports on the file from Dr M, who is a social worker; Dr V; and we have the reports from the Reverend U and Dr A, to mention but a few.  The view that I take is the matter is best determined expeditiously, having regard to the amount of time it has been in the list, and the matter should not be adjourned.  It would involve unnecessary stress and additional costs.  The matter can proceed next week.  I will not make an order for the appointments of an independent children’s lawyer, for the reasons I have just given.

10. I now have to consider an application for some witnesses to give evidence by telephone - I will hear from the mother - but the request, as I understand it is that the mother is to detail specifically what orders she is seeking, whether they are in the same terms as the application in the case she filed on 27 March this year, but also the mother is to indicate which witnesses she will be calling. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  20 August 2009